Conflict And Resolution Of Basic Rights In Commercial Use Of Personal Information

In the context of digital economy,data and information have become an important factor of production.Many digital enterprise platforms use personal information to carry out commercial activities,which can be called commercial utilization of personal information.In practice,personal information is all-encompassing,and the rapid development of the Internet makes it extremely convenient for people to retrieve and obtain information.In the era of big data,some digital enterprise platforms have a strong demand for information collection,processing and utilization,which is reflected in the mining,grasping,processing and utilization of open data.In judicial practice,a series of conflicts and disputes have arisen around the protection and utilization of disclosed personal information.In such disputes,the information subject considers that the digital enterprise platform’s use of personal information without its consent infringes its rights,and the platform considers that its processing and use of disclosed personal information is a normal commercial activity,which can promote the development of market economy.In such disputes,the conflict between the information subject and the enterprise platform belongs to the conflict of basic rights in the sense of the constitution.The information subject enjoys the right of personal information,which belongs to the basic right and can fall into the protection scope of personal dignity,human rights clause and communication right in the constitutional sense through interpretation.At the same time,the commercial use of personal information falls within the scope of protection of constitutional property rights.When the digital enterprise platform uses the personal information of the information subject,the information subject claims that its rights have been violated,and it can request the state for protection through the function of state protection obligation of basic rights.When the basic rights of the information subject are violated,it inevitably means that the state will intervene in the private legal relationship between "enterprises and citizens".Based on its constitutional obligation to protect the basic rights of the user subject,the state will actively help individuals to avoid the personality interference of the platform.As basic rights,human dignity and other rights not only require the state not to infringe upon citizens’ personal information,but also require the state to fulfill its obligation to protect citizens’ personal information and eliminate any acts that infringe upon the right to personal information.If the platform violates users’ basic rights by exercising property rights,the state may interfere with the platform’s property rights in order to protect citizens’ right to personal information.The property right in the sense of basic right also requires that the state should not intervene in it,and there is a conflict of basic right between them.There are many ways to solve the conflict of basic rights.The relevant theories of the solution mode of the conflict of basic rights can be divided into two parts,namely,the solution mode before the formation of the conflict of basic rights and the solution mode after the formation of the conflict of basic rights,including the procedure prevention mode,the theory of power hierarchy and the principle of practical reconciliation.The theory of practical harmonization includes the theory of case measurement,the theory of functional substitution and the principle of proportionality.Prior to the formation of conflicts of fundamental rights,priority should be given to the application of procedures to prevent the emergence of conflicts of fundamental rights in advance.In the face of the conflict between the right of personal information and the right of property,procedural prevention may be difficult to play its due role,because the conflict between the right of personal information and the right of property is often difficult to predict,and it is difficult for legislators to foresee the conflict between these two seemingly unrelated rights when legislating.In the case of conflicts of fundamental rights,judicial solutions should be sought first,and the principle of priority application of ordinary legal norms should be adopted.When ordinary legal norms cannot provide clear rules for resolving conflicts of fundamental rights,judges should directly weigh the fundamental rights involved in the case on a case-by-case basis.In the case that the optimal scheme cannot be sought,the right hierarchy scheme is adopted to determine which party’s basic rights of the conflicting parties have priority in a particular case to determine the solution.