| The cases of infringement of citizens’ personal information with the consent of the right holder mainly include two situations:the information right holder voluntarily provides or sells his personal information or voluntarily exposes his personal information on the online platform.Big data retrieval and statistics,found in the 62 cases retrieved,the proportion of cases in which a court decides a guilty or not guilty is 4 to 1,and the cases after the second instance and the judgment or partial verdict account for 6 percent of the total,so it is necessary to further practice part of the typical cases combined with the principle of criminal law.From the five cases of infringement of citizens’ personal information,such as Qu Fuyu case,Deng Guangming case,Zhang xianlou case,Li Hansen case and Wang Moumou case,There are three main focuses of controversy in such cases,namely,whether the personal information voluntarily disclosed belongs to the "citizen personal information" in the criminal law,whether the act of selling and providing other people’s personal information with consent is illegal,and whether the sale and provision of the collected published personal information need the secondary authorization of the information owner.First of all,for the definition of the connotation of citizens’ personal information,it should be clear that personal information is not equal to personal privacy,and openness is not the reason to hinder the compliance of the constituent elements of "personal information".The disclosed personal information that can identify the identity of a specific natural person also belongs to citizens’ personal information in the criminal law.Therefore,it is unreasonable to consider personal information as information with privacy attribute in a case,so as to exclude the disclosed personal information from the protection object of criminal law.Secondly,for the judgment of the illegality of the act,it should be clear that the legal interest protected by the crime is the personal legal interest with the right to self-determination of information as the core.On the one hand,the "relevant provisions of the state" should be limited to the laws and administrative regulations related to the protection of citizens’ personal information rights and interests as the judgment standard of the illegality of the act.On the other hand,it should also be affirmed that the meaning of the information right owner to "agree" can become the illegal obstruction of the crime.Therefore,it is inappropriate to include the super personal legal interest of social management order in the legal interest attribute of this crime,so as to deny the illegal blocking effect of "right-owners’ consent",and finally criminalize the behavior on the grounds of violating the relevant provisions of the state.Finally,on the issue of "secondary authorization",it is inappropriate to directly regard the disclosure of information as the judgment of general authorization in a case.We should judge whether the sale and provision of the collected public personal information need the secondary authorization of the information owner according to the specific situation of the case,rather than simply affirming or negating the secondary authorization rule.It is advocated that for the reasonable information processing behavior that is consistent with the reasonable expectation of the right holder when disclosing the information and does not infringe on the major interests of the right holder such as personal,property,peace and freedom,it is no longer required to obtain the secondary authorization consent. |
