Research On Civil Law Protection Of Personal Information In The Era Of Big Data

The value of personal information has been gradually increased in the era of big data,but the application of data processing technologies such as cloud computing and cooking makes people face the serious risk of "zero privacy" and it is urgent to maintain the security of personal information.The existing legislative system of civil personal information protection is scattered and lacks supporting liability provisions,and the application of the "right to privacy" and "general personality right" model in traditional judicial practice is also facing the dilemma of insufficient protection of personal information and confusion of legal interpretation.Although the Civil Code of the People’s Republic of China,which is about to enter into force,and the Law on the Protection of Personal Information of the People’s Republic of China(Draft),which is in the process of soliciting opinions,have specific provisions for the protection of personal information,they are mostly negative arguments prohibiting damage,the direct applicability is weak,and there is a conflict between the two laws.The problems of unclear legal attributes of personal information,complicated proof of tort liability and fact determination,high cost of litigation rights protection for the subject of information rights,and difficulty in containing large-scale information infringement still exist.Civil law,as the basic law in the private field,provides the right of personal information and the protection of relief in accordance with the characteristics of its rights law.In the construction of rights,although personal information overlaps with privacy,personal information not only embodies personality characteristics,but also has the function of commercial licensing and utilization that privacy does not have,its scope is far beyond privacy and there are differences between the two in the way of protection and the form of rights,the traditional "one-way system" privacy protection model has lagged far behind the era of big data,so the civil code personality rights should be clearly based on the right to protect personal information.In the legislative mode,compared with the decentralized legislation and industry self-discipline model represented by the United States,the unified legislative model represented by Germany in the civil law system is more in line with China’s national conditions,and China should formulate a unified personal information protection law and form a personal information legislation protection system with the Civil Code and the Personal Information Protection Law as its core.In the relief of personal information rights,we construct a dual relief system of personality right claim right and infringement claim right,and make up for the deficiency of infringement damage claim right with personality right claim right.In view of the difficult problem of the plaintiff’s proof in the personal information infringement litigation,by distinguishing the subject of infringement and choosing to apply the principle of multiple attribution to complete the conversion of burden of proof,perfecting the applicable rules of the elements of tort liability to reduce the plaintiff’s burden of proof,balancing the gap between the original defendant’s litigation status and thus enhancing the possibility of the subject’s victory.Aiming at the prominent characteristics of individual private interest litigation in large-scale personal information infringement,the system of relief of civil personal information public interest litigation is introduced,the subject qualification of the public interest litigation plaintiff of network operators is granted,the punitive compensation mechanism of personal information public interest litigation is supported,the standard of "multiplied punitive compensation" is standardized and the distribution supervision of compensation is strengthened by the net letter department,so as to protect the personal information comprehensively and effectively.