On The Judicial Application Of The Standard Of Personal Information Identifiability

With the introduction of a series of laws and regulations related to the protection of personal information,including the Law of the People’s Republic of China on the Protection of Personal Information,the criterion of identifiability has been established in the legislation as the core criterion for defining personal information.However,through the analysis of cases related to the judicial application of the personal information identifiability standard,it was found that the phenomenon of "different judgments in the same case" and the self-contradiction of the court’s reasoning,reflecting the difficulty of balancing the contradiction between individuals and information processors and the difficulty of responding to the challenges of dynamic scenarios.Further analysis of the problem reveals that it is rooted in a vague standard of identifiability.In judicial practice,some courts are not aware of the relevant factors affecting identification in a specific case,and can only apply the relevant provisions mechanically.At the same time,even when the relevant factors were recognised,different courts adopted different standards of judgement,which together led to the problem.The ambiguity is,on the one hand,due to the unclear scope of identification.While there is disagreement as to whether the scope of identification should be expanded or restricted,there is also a wide range of choices as to the path of interpretation of the restriction;on the other hand,the possibility of identification is difficult to grasp.The concept is based on the EU documents and is key to clarifying anonymised and de-identified information while influencing the understanding of the identifiability criteria.Under the challenge of dynamic scenarios,the identification possibility is mainly influenced by the factors of identification subject and identification cost.For the solution of the problem,here,taking the effect and operability of the solution as the standard,and choosing to base on China’s legal tradition and social reality,we try to propose that a dynamic identification model should be adopted,and through an in-depth interpretation of the identifiability standard,the relevant elements of identification can be clearly identified while providing the court with a uniform judgment standard for reference in the relevant judicial practice.First of all,in theory,the identifiability standard should be interpreted from the perspective of the scope of identification and the possibility of identification respectively.For the clarification of the scope of identification,it is chosen to go beyond the traditional classification method,to take the purpose of personal information regulation as the guide,to clarify that the protection and use of personal information should be taken into account,and to clarify the scope of identification by taking personality rights and interests as the discretionary platform.For the grasp of identification possibility,we should deeply understand the dynamic scenario,draw on overseas experience to refine the principle of dynamic balance,refine the identification possibility accordingly,and clarify the criteria for judging the identification subject and identification cost.Secondly,in practice,the definition of case law can be explored in China,giving play to the role of "quasi-judicial interpretation" of guiding cases and complementing each other with typical cases to make up for the shortcomings of the provisions in dynamic scenarios and maintain judicial justice.