Research On The Legal Issues Of The "triple Authorization Principle" In Data Circulation Dispute

With the rapid development of information technology,the digital age has come.After the combination of traditional legal issues and information technology,new legal problems continue to arise.These emerging issues are often closely related to offline social legal issues,but there are still many differences exist.Therefore,these new issues will face difficulties in the application of law when dealing with them,among which one of the most representative issues include data circulation disputes.When dealing with data circulation disputes,how to use the law to deal with this issue has become a major problem since data has the characteristics of strong replicability and fast circulation speed under the background of electronization,which are not available in the traditional society.So far,a series of problems about data circulation such as the types of rights and rights contained in the data in circulation are unsolved problems all over the world.However,although the legal problems have not been solved,the data ownership disputes have emerged in judicial practice.Therefore,in order to solve this problem,China’s judicial organs creatively put forward the "triple authorization principle".The "triple authorization principle" requires that the mode of "user authorization" + "platform authorization" + "user authorization" should be followed in the data flow between business platforms.The data acquisition platform can obtain user data from the data holding platform only after gains the above three authorizations.As for this mode,on the one hand,it does not essentially solve the problem of data right confirmation.Therefore,many scholars believe that if the "triple authorization principle" becomes a judicial rule,it has a huge problem about lacking legal basis for solving data circulation disputes.On the other hand,at the judicial level,the "triple authorization principle" is indeed an efficient and feasible judicial process for the trial of data circulation dispute cases in China.Under the above dual contradictions,this paper believes that before more reasonable and feasible judicial rules show up,the“triple authorization principle" has indeed played an important role in the trial of data circulation dispute cases in practice.Although the legal theory has not been able to give enough convincing idea about the solution of data circulation disputes,such cases have already occurred in judicial practice.Therefore,at this stage,China’s original "triple authorization principle" has important value and significance at the judicial level.In this way,the goal of this paper is to sort out the problems existing in the "triple authorization principle" and give targeted solutions.On this basis,the overall judicial application process of the "triple authorization principle" is optimized through the summary of solutions.The problems of the "triple authorization principle" can be divided into two categories: application problems and internal problems.This two categories can be split into three sub problems: “the data classification of the" triple authorization principle is unclear,“the right is hard to distinguish” and “the basis of legal application is unknown”.The application problems mainly include "unclear data classification",which specifically means that the data involved are not classified when using the "triple authorization principle" to solve the data circulation disputes.In fact,not all data belong to the scope of application of the "triple authorization principle",and even if the data types belonging to the scope of application are different,the application methods and focus should be different.At present,there are many classification methods for data in academic circles,but none of them can fully fit the characteristics of the "triple authorization principle".Based on this,this paper proposes a "new classification method",which divides the data into "single" business data,"single" personal data and"mixed" data according to the degree of "meaning" given to the data by users and data platforms.Among them,"single" business data and "single" personal data do not belong to the applicable scope of the "triple authorization principle",and only "mixed"data could be included in the reference scope.The subdivision of "mixed" data and the adjustment of application mode are measured on the basis of "substantive investment".This data classification method can effectively solve the problem of unclear data classification of the "triple authorization principle".The internal problems of the "triple authorization principle" include "hard distinguishing rights" and "unclear basis of legal application"."Unknown rights" refers to,on the one hand,what kind of "rights" are granted by the "triple authorization principle".It is not clear whether they are real rights,property rights,intellectual property rights or rights based on contracts and so on.On the other hand,it is unclear how this "right" is distributed and transferred among users,data holding platforms and data acquisition platforms.Therefore,this paper summarizes the existing theories on the right of data confirmation,analyzes the advantages and disadvantages of each theory,and finally finds that there is not only one "right" in the "triple authorization principle",and the types of rights in the actual situation may be the combination of multiple rights.On this basis,the concept of "right bundle" could be introduced on the legal level,and the problem of "unknown right" can be analyzed from the perspective of the whole and individual,which can make the solution of the problem organized and not confused.The problem of "unclear basis of law application" also belongs to the internal problem of the "triple authorization principle" rather than the "application problem",because the "unclear basis of law application" here does not mean that those problems are happened when using the "triple authorization principle" to analyze cases in judicial practice,but refers to the time when the "triple authorization principle" is put forward,There are problems in the criterion of "authorization" contained in its internal meaning and its application in combination with laws and regulations.Specifically,"triple authorization principle",as a right distribution problem should be included in civil law;however,has already included in the category of competition law in reality.Since the judgement has its foothold in that without platform authorization,it belongs to unfair competition and is included in the category of competition law.Another problem is that the reference standard is the format contract unilaterally concluded by the data holding platform.Such contracts directly serve as the judgment basis of the "triple authorization principle" without legitimacy review.Based on this,this paper gives the following suggestions: "triple authorization principle" should be the judicial rule in the field of civil law.However,since it is impossible to give a consensus answer to the problem of data right confirmation in data circulation disputes all over the world,the judicial practice could be unrealistic if it is not combined with the anti-unfair competition law in dealing with such cases.Therefore,while adopting the common application of the anti-unfair competition law and the civil law,we can change the original general provisions of the anti-unfair competition law as the judgment basis into the general provisions of the civil law as the main judgment basis,and explain the judgement about the case in combination with the general provisions of the anti unfair competition law,the special provisions of the civil law and the special provisions of the civil sector law.Thus,without affecting the practical operation,the focus of the case could be shifted from the field of competition law to the field of civil law.As for the problems existing in the consent basis of "platform authorization",the legitimacy review of the consent basis should be added from the perspective of individual cases to avoid the conditions that the data holding platform forces the data acquisition platform to accept inequality thing from the format contracts.In terms of generality,this paper believes that when judging whether it conforms to the "triple authorization principle",the legal basis for legitimacy review will change according to different cases.It is not all the legal basis are the belonging to the format contract,nor is it all the data holding platforms are the strong party.Therefore,the judge should establish the idea of "anti-discrimination" and focus on examining whether the strong one of the two sides of data circulation has created discrimination.If so,it cannot be used as the judgment basis of the "triple authorization principle".Through the above solutions,we can comprehensively solve the problem of "unclear basis of law application" in the "triple authorization principle".Finally,in terms of the whole judicial application path of the "triple authorization principle",compared with the rigid application of the law of "user authorization" + "platform authorization" + "user authorization",the judiciary needs to establish a flexible way of thinking,which is,with two-way thinking,"protection" and "inhibition" both,rather than "rigid" thinking,considering only one aspect.Based on this,the flexible way of thinking for the "triple authorization principle" mainly lies on using "identifiability" and "substantive investment" as the two-dimensional judgment to empower and limit the rights of the data holder,user and data acquisition party.Also,the basis of empowerment and restriction should come from the classification of the data involved in the case.At the same time,establish a new way of reasoning under the flexible thinking mode,break the marginalization of the "triple authorization principle" in the original reasoning system,and establish a reasoning system with the "triple authorization principle" as the core framework.In this way,we could ensure this model plays the most significant role in judicial practice.