Research On Individual Refusal Right Under Automated Decision-making

Article 24 of the Personal Information Protection Law of the People’s Republic of China(hereinafter referred to as the Personal Information Protection Law)makes special provisions on the personal right to refuse under automatic decision-making,which opens up a new path to protect the rights and interests of personal information.With the advent of the digital age,personal information as a new factor of production and a basic strategic resource is becoming increasingly prominent.Many public and private sectors use personal information to make automated decision-making to improve efficiency and profit.The use of automated decision-making brings high efficiency to the society,but also is accompanied by risks such as big data killing,information cocoon,information leakage and discrimination.Because of information asymmetry,individuals are not aware of the existence of automated decisions in many cases.Personal information processors have obtained personal consent as the legitimacy basis of personal information processing,but in practice,the “consent” is mostly general consent,and automated decision-making exists in the lengthy privacy policy.Therefore,article 24 of the Personal Information Protection Law stipulates that personal information processors have the right to reject personal information by making decisions that make a decision that has a significant impact on their rights and interests.The relevant system design of the individual refusal right under the automatic decision is of great significance,which is a supplement and correction to the traditional right of consent and the right of algorithm interpretation,and can optimize the allocation of information resources.However,it is still ambiguous and is in an overhead state in practical application.First,the value choice of individual refusal right under automated decision-making is controversial.The application of refusal or automatic decision result refusal are different value choices,but the relevant legal norms do not specify whether the object of individual refusal is the result or behavior of automatic decision.Second,from the perspective of Article 24 of the Personal Information Protection Law,the exercise of individual refusal right includes two conditions: “Only through automatic decision-making” and “has a significant impact on individual rights and interests”.But in practice,information processors often avoid the application of this article by forging artificial intervention.It is also unclear what the “significant impact” is.In addition,this article does not set restrictions on the individual refusal right,resulting in the exercise scope of the individual refusal right is too wide.Third,automated decision-making and related rejection methods generally exist in privacy policies.Because many privacy policies do not conform to the principle of transparency,the rejection method is too complex,resulting in the lack of guarantee for the exercise of individual refusal right.Fourth,from the perspective of the Personal Information Protection Law,the regulatory subjects that guarantee the realization of individual refusal right under the automatic decision-making are mainly the person in charge of personal information protection and the national Internet and information department.In practice,China’s data supervision is responsible for by multiple institutions,but due to the lack of supervision force,it is extremely difficult for individuals to exercise power.Fifth,after the information subject refuses to make the automatic decision,the legal effect is unclear,that is,the effectiveness of the automatic decision result is still controversial.At the same time,the relevant relief path only includes individual direct and separate prosecution,and the relief method is relatively single.Digitization is not completely equivalent to a good life.We need to face up to the value of individual refusal right under automated decisions and balance interests.First,in order to balance personal interests and social interests,China should establish the right of automatic decision making result rejection,that is,the rejection object is automatic decision making result rather than automatic decision making application.Second,the conditions for the exercise of individual refusal right should be clarified and the specific meaning should be explained.“Automated decision only” does not prevent the exercise of the individual right to refuse with only a human intervention,which needs to have a substantial impact on the outcome of the automated decision.The meaning of “significant impact” should be divided into three aspects: personalized push scenarios,commercial marketing scenarios and other personal evaluation scenarios.At the same time,we can draw lessons from the relevant foreign regulations and set up restrictions on the exercise of individual refusal right.Third,the right to be informed as the basis to ensure the transparency of the whole process of the exercise of individual refusal right under automated decisions.Fourthly,it is urgent to strengthen the coordination of internal and external supervision subjects in automatic decision-making,so as to establish a perfect supervision mechanism and ensure the exercise of individual right to refuse.Finally,we can try to introduce multiple relief methods,including the introduction of personality right claim to determine the legal effect after the exercise of individual right of refusal,promote the construction of rights protection mechanism of industry organizations and the construction of class action system that infringes on individual right of refusal.