Research On The Informed Consent Rules In The Era Of Big Data

In the 1970 s,personal information processing was gradually computerized,and meanwhile,the informed consent rule came into being.The initial design of the informed consent rule was to eliminate the information gap between the information subjects and the information processors and to assist the information subjects to make true and independent consent.Under this premise,the rules require that while processing personal information,information processors should fully inform the information subjects of the processing of the personal information and obtain the explicit consent of information subjects.However,after the advent of the big data era,the informed consent rules have suffered from the impact from reality: first,the information processing technology has undergone major changes,resulting in the failure of the system functions at the beginning of the rule design;second,the gradual alienation of privacy agreements has led to the rules fictitiousness is implemented in practice;the third is the imbalance of the subject relationship,which highlights the weakness of the information subjects while facing the information processors.In addition to the impact from reality,the rules of informed consent have also been questioned or even denied.These questions are varied,some of them are directed at the current situation of the implementation of the rule.The questioners believe that the formal significance of the rule in practice is greater than the substantive significance,and the rule has gradually become a means for information processors to evade legal liabilities.For the value measurement behind the rule,some skeptics believe that this rule not only brings economic costs for information subjects and information processors to give or obtain consent,but also hinders the development of the current data age,affects the development of industries and the improvement of social well-being.The above questioning does reflect some of the practical problems faced by the current informed consent rules,but the effectiveness and value of the rules are not as unbearable as the doubters say.As far as the implementation status and legal effects of the rule are concerned,the questioner confuses the validity and necessity of informed consent.The ineffectiveness of the rule can only indicate that it needs improvement,it cannot be denied for granted.As far as the value measurement behind this rule is concerned,the skeptic only sees the significance of personal information to society and others,ignores the meaning of personal information to the information subjects.Although economic development and social progress are important,their ultimate purpose is to serve people.In this way,there is no need to stay close and seek further away without insisting on the rules of informed consent.In fact,both legislation and practice hold an attitude towards the rule of informed consent.The main reason for this is that the existence of the rule is its meaning.As far as individuals are concerned,the informed consent rules give information subjects to restrict the rights of information processors;as far as information processors are concerned,the informed consent rules give them the basis for legal processing of personal information;as far as the overall system design is concerned,it is not so much to insist on informed consent.Rather,the rules are to uphold the protection of personal information and uphold the respect for human autonomy.Therefore,although the current informed consent rule is facing various difficulties and doubts,we still cannot abandon it but must explore its way out.In view of the current exploration of informed consent rules,there are two main directions.The first direction is to completely abandon the original informed consent rules.The second direction is to improve on the basis of existing rules.Specifically,the United States and some scholars adopted the first method.Although this improvement promotes the circulation of personal information,it ignores the autonomous will and information security of the information subjects.The European Union and some other scholars adopted the second type.They not only refined the original rules,but also added other rules to assist.However,the second type of improvement also has some problems,such as strengthening the control of individuals over their information and the single classification standard of personal information,etc.In fact,the improvement of the informed consent rules needs to be re-evaluated in terms of value selection and rule design to realize the diversified interests carried in personal information and to achieve a balance between the interests of information autonomy,security and the interests of information processing.The application of informed consent rules cannot be unified,but must be reformed and differentiated.At the same time,the authorization and legality of consent rules should be exempted and restricted in order to realize certain special interests.Under the guidance of the above thoughts,the focus of the improvement of the informed rules should be to expand the informed content,strip the consent authorization function of the privacy agreement,and use of technical means to innovate the display method of the privacy agreement content,breaking through the original one-time notification method and achievement of multiple triggers notification and dynamic disclosure.The focus of the improvement of the consent rules is to introduce the necessary business information classification standards and diversify the way of making consent,forming a "grasp the big and let go of the small" consent authorization pattern,supplemented by the exemption and restriction rules for the consent rule authorization,finally to realize the balance of the multiple benefits of personal information.