| The provisions 1035 th and 1036 th of our "Civil Code of the people’s republic of China" establish the "Guardians’ Consent Rules" and "Guardians’ Consent Exemptions" to protect personal information of the under 18 s.Before implementing the "Guardian’s Consent Rules",it is necessary to clarify: the age stage to obtain the guardian’s consent,information scope,technical measures and identification cost of the consent.The problem of rights and interests damages of minors’ personal information caused by wrong consent of the guardians and lack of responsibilities of information dealers.The principle of informed consent is a concrete manifestation of the principle of autonomy of will in the field of civil law,which links the power of informed and consent with information self-determination.Due to the imperfect autonomy of will,limited cognitive ability,and insufficient behavioral ability of minors,the informed consent rooted in the right of information self-determination cannot be exercised on their own,so the law empowers guardians to exercise the right of information self-determination on behalf of minors.The essence and core of personal information protection lies in the informed consent of personal information processing.The guardians’ informed consent means that when the guardian is clearly informed to collect and use the personal information of minors,his or her decision should be based on the maximization of the interests of the minors.The Guardians’ Consent Exemptions " equals to a substitute decision" rule,which is not established to empower the guardians,but to set a "safety valve" for the protection of minors’ personal information.Based on this consideration,the age stage for obtaining the consent of the guardian should be based on the provision 31 th of the Personal Information Protection Law.Minors above 14 adopt a dual subject model with the consent of themselves and their guardians while minors under 14 mainly follow the principle of Guardians’ Consent Exemptions.As for the scope of information,the information protection scope of minors under the age of fourteen shall include all their personal information,and the information protection scope of minors who have reached the age of fourteen can be flexibly operated referring to different scenarios.The technical measures and identification costs shall be combined with the "Regulations on the Protection of Children’s Personal Information Online",and the information processor shall provide special information processing rules and bear the identification costs.If the guardian wrongly agrees,a one-click revocation system shall be set up,which shall be deleted by the information processor in time.If the information rights and interests of minors are damaged due to the lack of responsibility awareness of information processors,they should assume no-fault responsibility,clarify their obligations to ensure safety,and set up a punishment mechanism for violating the guardian’s consent rules.Excluding the introduction and conclusion,the article is divided into four parts for discussion,the specific contents are as follows:The first part is the current situation and dilemma of the application of the guardian consent rules for the protection of minors’ information in my country.By sorting out the relevant legal norms on "guardian consent",we can clearly see the importance of the guardian consent rule to the protection of minors’ personal information,but the relevant regulations are relatively scattered,vague and unspecific.The protection of minors’ personal information is also weak.The specific analysis of the difficulties in its application mainly includes the inconsistent age standards for obtaining guardians’ consent,the ambiguous information scope for obtaining guardians’ consent,the cost and technical problems of obtaining guardians’ consent,the hidden dangers of information security caused by wrongful consent of guardians,and the responsibility awareness of information processors.These five aspects are missing.The second part is to analyze the reasons for the dilemma of the application of the guardian’s consent rule.The first is that the purpose and method of the guardian’s consent are not clear,the purpose of constructing the rules is vague,and the setting of the consent method is unclear,which will cause the guardian to deviate from the goal of maximizing the information rights and interests of minors when the application of the consent rules is applied.Secondly,there is a situation in which the guardian agrees that the premise of "rational person" and the premise that the interests of the guardian and the minor are consistent become invalid.Hidden predicament.Third,the law vaguely defines "minors" in information protection,the content of minors’ personal information,and the scope of information protection,resulting in inconsistent age standards for obtaining guardians’ consent and blurring of information scope.Finally,due to the particularity of the protection of minors’ personal information and the high risk in the era of big data,the application of the guardian’s consent rules requires the cost and technical problems of obtaining the guardian’s consent,as well as the lack of awareness of the responsibility of the information processor.And the dilemma of using "guardian’s consent" as a reason for exemption.The third part is the observation and enlightenment of the application of the extraterritorial guardian consent rule.Firstly,it interprets the parental informed consent rules in the US Children’s Online Privacy Protection Act from three aspects: the origin of creation,verifiable parental consent and the punishment mechanism for violating the informed consent rules.Secondly,it interprets the parental consent rules in the EU General Data Protection Regulation from the perspectives of the upper limit of protection age,information society services for children and the realization of parental consent.Finally,from the observation of the application of the extraterritorial guardian consent rules,we re-examine the design of the guardian consent rules in our existing legislation.It is necessary to further refine the guardian consent rules and clarify the security obligations of personal information processors.The fourth part is a suggestion to improve the application of the guardian consent rules for the protection of minors’ information in my country.On the basis of my country’s existing legal system for the protection of minors’ personal information,the 14-year-old should be used as the boundary,and the guardian’s consent should be adopted for minors under the age of fourteen.The ability to consent can be recognized,and the dual subject model of the consent of the person and his guardian can be adopted.At the same time,the scope of information that has obtained the consent of the guardian is divided by age.The information protection scope of minors under the age of fourteen should include all their personal information,and the information protection scope of minors who have reached the age of fourteen can be flexibly based on different scenarios.Divide.And by setting up a special supervision agency,optimizing the standards and methods of guardian consent,strengthening the security obligation of information processors,and setting up a penalty mechanism for violating the guardian’s consent rules,a more complete model for the protection of minors’ personal information has been constructed. |
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