On The Legal Effect Of The Privacy Policy Agreemen

With the increasing emphasis on the protection of personal information in legislation,formulating and strictly abiding by privacy policies has become an important means for personal information processors to meet the requirements of the principle of openness and transparency in legislation,ensure the realization of the information subject’s right to know and make decisions and ensure that personal information processing acts are legitimate and legitimate.Although the privacy policy unilaterally formulated by personal information processors meets the requirements of efficiency and convenience,there are also many unreasonable provisions that affect the legitimate rights and interests of information subjects.Information subjects usually seek relief from the perspective of infringement,but they do not often have a common sense of relief for breach of contract.Therefore,this article is based on a contractual perspective,hoping to provide some theoretical support for the contractual relief of information subjects.The nature of privacy policies is a prerequisite for demonstrating the effectiveness of privacy policies,but there is considerable theoretical controversy over this issue.This article summarizes and compares the main viewpoints and reasons for the nature of privacy policies,and finds that the core controversy lies in the issue of whether privacy policies belong to contracts.Non contract theorists believe that privacy policy agreements do not have a contractual nature because they have not been negotiated by both parties and their rights and obligations are unclear.Contract theorists demonstrate the contractual nature of privacy policy agreements from the perspective of the contract formation method and contract content of the offer acceptance.This article analyzes the two behaviors of personal information processors,namely,unilateral publishing of privacy policies and consent of information subjects,to illustrate the contractual nature of privacy policies.The unilateral release of privacy policies by personal information processors constitutes an offer;As for the consent made by the information subject,its nature is not uniform,and there are legal act theories,quasi legal act theories,and illegal obstruction theories.The core of the debate between the former two is whether the consent given by the information subject produces the legal effect that the parties want to occur,while the characterization of the cause of the violation is not accurate enough.After weighing and analyzing,the consent is characterized as an atypical legal act,belonging to the expression of will,and meeting the constitutive requirements of the commitment.Therefore,the privacy policy has a contractual nature.After demonstrating the nature of privacy policies,this article focuses on analyzing the effectiveness of privacy policies,exploring their impact on the effectiveness of privacy policy agreements from three perspectives: consent ability,expression of intent flaws,and format contracts.Firstly,consent ability is a special behavioral ability that should be comprehensively judged based on two criteria: age and willpower.Information subjects under the age of 14 need to agree with their legal representatives,but they should ask for the opinions of information subjects over the age of 8 and respect their independent decision-making rights;Information subjects over the age of 14 have the right to make independent decisions,but certain subjects who do not have the ability to express themselves should be excluded,otherwise they will be invalid.Secondly,when processing personal information,information processors should make the information subject fully informed and voluntary.Voluntary or not should be comprehensively judged based on the performance of the disclosure obligation issued by the information processor.If there are negative factors such as repeated disclosure,bundled disclosure,inability to refuse disclosure,and refusal to disclose transactions,it should be presumed that the information subject made an involuntary consent,which may also lead to legal consequences of invalid privacy policies.Finally,analyze the information processor from three perspectives:shield clause,sword clause,and hook clause to explain how to perform the obligation of prompt.Improper performance of the obligation may lead to the consequences of not entering into a contract;Improper restriction or exclusion by information processors of the information subject’s right to know or decide will result in the invalidity of this provision.If the privacy policy is determined to be invalid,the information subject can exercise the right to delete,withdraw,and other remedies.