Research On Liability For Infringement Of Personal Biometric Information In China

Personal biometric information refers to personally identifiable information generated by biometric technology,which is exclusive,unique and stable.According to current technology,biometric information includes behavioral information such as gait information,image information such as facial information,auricle information,voiceprint,and privacy information such as retina or iris scan,fingerprint,palmprint or vein information.If such information is misused,it will lead to privacy leakage,property loss,and discrimination against minorities,inducing criminal activities such as identity theft and identity fraud.In addition,once the biometric information is leaked,the information subject cannot recover it.At that time,the true information right holder will be forced to withdraw from all biometric authentication activities.Compared with general personal information,biometric information is more specific and requires to be protected through personal information rights.Biometric information infringements include illegal collection,illegal use,illegal transmission,illegal provision,and illegal disclosure of biometric information,which are concealed and complex.Different infringement liability principles should be applied for the information processing subjects of state agencies and non-state agencies,and different types of damage compensation should be applied to large-scale infringements and targeted infringements.In addition to tangible damages,intangible damages such as social discrimination and data leakage should be relieved,the victim’s burden of damage proof should be reduced,which are necessary to protect the rights and interests of information subjects.In the imposition of liability for infringement of biometric information,the single or dual imputation principle cannot balance the different interests of the information controller and the information subject.Beyond that,the principle of multiple liabilities shall be adopted according to the identity and technical level of the infringers.Specifically speaking,the judge uses the principle of liability with fault for general infringers,when the infringer is a non-public agency that masters automated techniques,the principle of special fault doctrine liability is adopted;however,when the infringer is a public agency that masters automated techniques,the principle of non-fault liability is adopted.In order to ensure the realization of tort liability,punitive damages shall be applied to serious malicious infringements,and the amount of compensation is based on the property status of the infringer and the per capita disposable income of residents in the previous year.Judges strip the infringer’s gain and return it to victims in large-scale infringements.During the infringement process,the victim can claim right of personality,requiring the infringer to bear the non-property liability,such as eliminating the danger,stopping the infringement,restoring reputation,eliminating the impact and offering an apology.