Research On The Principle Of Imputation Of Tort In Personal Information Processing

To strengthen the protection and full use of personal information,China has enacted the Personal Information Protection Law,which has been implemented since November 1,2021.Article 69 of the law establishes the imputation principle of Tort in personal information processing as the liability of presumption of fault,whose progressive significance is undoubtedly worth affirming.However,there is still no consensus on how to set up the principle of tort liability in dealing with personal information.It can be predicted that with the implementation of this law,the research on this issue will still be the focus of the field of personal information.Therefore,it is necessary to deeply study the legislation and practice of the principle of liability fixation of tort in the processing of personal information abroad,and combine with the latest legislation and practice exploration in our country to further explore the problem of the principle of liability fixation in the processing of personal information.From the perspective of theory and practice,the most concerned factors in the establishment of tort imputation principle of personal information processing are hazard control and the ability of adducing evidence and litigation.The legislative and practical experience of the European Union and the major European countries,the countries of North America and the major Asian countries and regions on the principle of liability for infringement of personal information has shown that,the imputation principle of tort in personal information processing is closely related to the pattern of personal information protection,and the imputation principle system of tort in personal information processing varies from country to country.In our country,at present,the discussion on the imputation principle of tort in personal information processing mainly focuses on whether there are obvious problems in the stipulation of the principle of presumption of fault in the personal information protection law,and whether and to what extent the strict liability principle should be set up? However,the view that the definition of presumption of fault in the personal information protection law is obvious is a reflection on the appropriateness of legislation from the perspective of consequences,but it can not be a reason to refute the appropriateness of legislation.However,the assumption of fault liability for infringement of personal information is difficult to deal with the high risk of automated decision-making in the age of digital intelligence.The principle of liability fixation of tort of personal information in the Personal Information Protection Law of our country should take full account of the ability of giving evidence,controlling litigation and controlling dangerous sources,and establish the presumption of liability and the dual system of strict liability in dealing with tort of personal information.Of course,not all automated decisions are made on a strict liability basis,as for low to medium risk algorithms,the risks can largely be controlled through well established accountability mechanisms and fault based liability can be introduced.However,for high risk scenarios,prior risk assessment,in-process audit,and after-the-fact supervision are difficult to avoid the high risk of uncertainty,so we need to take strict liability.Of course,in order to encourage technological innovation and reduce the risk of algorithm designers and users,we should set up a high-risk algorithm insurance system.