Research On Informed Consent Rules In Personal Information Protection

The introduction of the Personal Information Protection Law kicked off the special legislation in the field of personal information in China,and further constructed the rules for handling personal information with "informed consent" as the core.At the same time,the law also reflects the strength of China’s rule of law protection,not only granting a series of self-determination rights and interests to information subjects and fully safeguarding the security of personal information,but also imposing more stringent compliance obligations on information processors,i.e.,they are required to prudently fulfill the duty of care in all aspects of informing,knowing and consenting.Combined with the current data economy boom,the seemingly scientific informed consent rules have not met expectations in terms of protection in practice.Specifically,the protection model of strengthening the self-determination of personal information can easily lead to the generalization of consent,which is the limitation of the "blanket" consent rule;secondly,when the profit-seeking information processors face excessive compliance costs,the application of the "rubbish" type of user agreement may Again,there is a tension between the strict informed consent rule and the free flow of information,as consent is prior consent,and the rule itself has limitations.Based on the above analysis,the informed consent rule faces dilemmas and challenges in the protection of personal information,and it is necessary to respond to questions such as whether to continue to apply the rule.From the viewpoint of history and comparative law,it is justified to adhere to and reaffirm the informed consent rule.The theory of information asymmetry requires the rule to protect the information subject in an unequal position,while the theory of balance of interests requires the rule to balance the personal and public attributes of information.The above two theories provide the basis for the existence and application of the informed consent rule,but its deeper justification lies in safeguarding the human dignity of natural persons and information self-determination.Those personal information rights and interests derived from data development rely on supporting legal provisions for affirmative protection.Thus,a philosophical level can be found to explain the basis for upholding the rule of informed consent.Currently,there is more discussion in the academic community on how to improve and optimize the informed consent rule,and the position to continue to adhere to and optimize the rule is self-evident through a review of representative views.However,scholars are still at the discussion stage of exploring further refinement of the application of the informed consent rule,and need to choose a path to optimize the rule in line with China’s reality by taking into account the experience of personal information protection in foreign countries.Although China’s Personal Information Protection Law presents a legislative model that favors the protection of personal information rights,its purpose is to balance the tension between the rights of personal information and the promotion of data and information flow.A more reasonable rule optimization structure should continue to adhere to the optimization position of balancing interests,and carry out "scenario-based rule setting" inward,i.e.,through personal information classification and dynamic consent stratification,to ensure effective informed and substantial consent of information subjects and provide reasonable space for information processors to use.At the same time,the rules will be integrated with "diversified legal governance" outward,i.e.,the data and information law system and the socialist law system of personal information protection will be connected,and multiple information subjects will be encouraged to play the roles of supervision,autonomy and common governance.In the continuous improvement of the rules of informed consent,we promote the formation of a personal information protection system with dynamic protection,rational use and diversified governance.In this way,China takes into account the public attributes of personal information while implementing a differentiated consent model,bridges the gap between private law protection and public law protection in terms of ex post relief after the fact,and provides more refined behavioral guidelines to resolve the dilemma of applying informed consent rules.