Application Of Consent Rule In Personal Information Protection

Article 111 of the Civil Code of the People’s Republic of China clearly stipulates that the personal information of natural persons is protected by law.The protection of personal information has always been carried out based on the rules of consent.Obtaining the consent of the individual is the primary condition for the processing of personal information by the personal information processor.However,there are still differences in theories regarding the legitimacy of the establishment of consent rules and the specific applicable rules.Based on the provisions of the current law,the establishment of the consent rules has its justification basis.At the same time,the specific application of the consent rules and applicable exceptions should be explained in order to accurately apply the rules and provide better protection for personal information.The establishment of consent rules is justified.The core purpose of personality rights is to maintain human dignity.The close connection between personal information and personal social image requires natural persons to have "autonomous decision" on personal information.As a direct manifestation of "self-determination",the consent rule is an inevitable requirement for maintaining human dignity..At the same time,personal information is an element of personality rights that is permitted by law and can be used by others in nature.The establishment of consent rules indicates that personal information can be processed only after the consent of the subject of personal information,which provides institutional support for promoting the commercial use of personal information.The specific application of consent rules should be refined.The consent rules apply to the processing of personal information,and personal information can be limited by "identifiable" and "associated".Consent is premised on being informed,and merely fulfilling the obligation of notification does not mean that the right to know is guaranteed.Consent is an expression of intent and should meet the substantive and formal requirements for expression of intent in the Civil Code.In essence,the purpose of personal information processing is used as the basis for judging the voluntary nature of consent.Formally,implied consent rules apply to general personal information,and explicit consent rules apply to sensitive personal information.In order to build a flexible and reasonable consent rule application system,we should also pay attention to the exceptions to the consent rule,that is,the situation where personal information can be processed without the consent of the personal information subject,which is a restriction on the rights of personal information based on interest measurement.The exceptions to the consent rules include three types of situations:one is to process personal information for the protection of public interest and national interest;the other is to process personal information for the protection of the personal and property rights of the natural person or other natural person;and the third is to process personal information that has been legally disclosed.