In the field of personal information protection,the rule of notice and consent is the core content of the personal information protection legislation of various countries and the documents of international organizations.It is an important way to realize the self-management of personal information.This rule originated from European and American legislation in the era of small data.At that time,the information processing scale was small,and the related procedure was simple,so that the rule had obvious effect on protecting the rights and interests of personal information.However,with the advent of the era of big data,information interaction is frequent,technical processing behavior is complex,then the limitations of consent rules are increasingly prominent and evolved into an “application dilemma”.Faced with the challenges of information industry development and the realistic dilemma of the informed consent rule,Germany and the United States,as the pioneers in the field of personal information protection legislation,respectively,based on the “Theory of information self-determination” and the “Theory of privacy”,amend the legislation and innovate the system to strengthen practical effect of the rule of notice and consent.The OECD Guidelines,the Convention of the Council of Europe,the Treaty of the European Union and other international organization documents,which are the source of the legislation of personal information protection in various countries,have been actively reformed and are still exploring the optimal solution of the application of the consent rule in practice.“Personal Information Protection Law of the People’s Republic of China” was born in the era of big data.The rule of notice and consent is a core norm.However,the relevant regulations are still lacking.How to solve the dilemma of the application of this rule in the era of big data? Should the rule be replaced? How should the information collector fully fulfill the obligation of disclosure to ensure the individual’s right to know? How to break through the limitation of consent authorization mechanism? The above problems not only include the perfection of legal rules,but also concern the reasonable allocation of rights and obligations between the information subject and the information collector,as well as the relationship between the protection of information rights and personal data circulation.Starting from the above problems,this paper studies the rule of notice and consent in the protection of personal information from the perspective of international comparison,which is mainly divided into the following four chapters:The first chapter is an overview of the notice and consent rule in the protection of personal Information.Firstly,this chapter explores the historical development of this rule and clarifies its connotation.On this basis,it puts forward that the rule faces the application dilemma of inadequate performance of notification obligation,failure of consent authorization mechanism and high cost of practice in the era of big data.The second chapter is “The legislation and judicial practice of the consent rule of extraterritorial law”.This chapter takes Germany and the U.S.,the pioneers of personal information protection legislation,as the research objects,sorts out the provisions of the two countries’ legislation on the rule of notice and consent,analyzes typical cases,and evaluates the provisions.It is found that the unified data protection law of Germany is complete and forward-looking,but there are still deficiencies in its provisions.Personal information protection in the United States is characterized by industry self-discipline and reasonable expectation of privacy.Now U.S.is still exploring ways to dilute the requirement of consent.The third chapter is “Rules of notice and consent for the protection of personal Information in international organization documents”.This chapter takes the current legislative sources of personal data protection in the world as the research object,respectively combs the OECD Guidelines,the Convention of the Council of Europe,and the provisions of the EU regional treaties on this rule,studies its changes and makes an analysis.To adapt to the changing information scene,international organizations are actively revising the principles of personal information protection,improving the standards of the rule of notice and consent,as well as working to solve the dilemma of the application of it.The fourth chapter is “The enlightenment of the provisions of foreign law and international organizations to China’s improvement of the rule of notice and consent”.Returning to the Chinese perspective,this chapter firstly combs the relevant provisions of this rule in Chinese legislation on personal information protection.And then based on the foregoing analysis,referring to foreign legislation and international organization documents to explore the beneficial exploration of decoding the application dilemma of the rule,and explores the improvement path of it. |