In modern society, the protection of privacy and personal information is highly valued by all countries. In order to better protect the personality rights of the broad masses of people, in view of various outstanding problems in the field of privacy and personal information in practice, China’s Civil Code has made special provisions on privacy and personal information protection on the basis of existing legal provisions. In Chapter 6 "Privacy and Protection of Personal Information" of the Personal Rights of the Civil Code, not only the basic concepts of privacy, personal information and the handling of personal information are clearly defined, but also the types of behaviors that infringe on privacy that are prohibited, the principles that should be followed in handling personal information, the elements of legality and the rational use of personal information are clearly defined, and the relationship between privacy and protection of personal information is also stipulated. In understanding and applying the provisions on privacy and personal information protection in the Civil Code, there are three issues that need attention.
First, the right to privacy and the meaning of privacy
The so-called right to privacy refers to the right that a natural person enjoys without infringement on his privacy, which is a specific personality right. The first paragraph of Article 1032 of the Civil Code stipulates: "Natural persons have the right to privacy. No organization or individual may infringe upon the privacy rights of others by spying, harassing, revealing or making public. " The right to privacy protects the privacy of natural persons. From the word privacy itself, we can see that there are two characteristics: one is "hidden", that is, it is not public. If it has been publicly or legally disclosed by natural persons, it is not privacy; The second is "private", that is, private matters, which have nothing to do with the rights and interests of others and public interests. It is from these two aspects that the second paragraph of Article 1032 of the Civil Code defines privacy as: "The private life of a natural person is peaceful and the private space, private activities and private information that others do not want to know." This shows that:
1. Privacy is only owned by natural persons. Because the protection of privacy is closely related to the spiritual interests of natural persons, it is fundamentally to safeguard personal freedom and protect personal dignity. In other words, only natural persons can enjoy the spiritual interests that need legal protection for privacy. As for legal persons and unincorporated organizations, there is no privacy problem. Legal persons and unincorporated organizations also have activities and information that they don’t want to be known to others, and there is also a need for the order of work activities not to be disturbed and destroyed, but these are either state secrets, business secrets, or the order of production and operation or public activities.
2. Privacy in China’s law is divided into: private life is peaceful and private space, private activities and private information that others don’t want to know. (1) Peace in private life can be divided into broad sense and narrow sense. In a broad sense, peace in private life can actually cover private space, private activities and private information. Because the second paragraph of Article 1032 of the Civil Code defines privacy, it juxtaposes private life peace with private space, so the private life peace in this paragraph refers to the narrow sense of private life peace, that is, the state that the personal life of a natural person is not illegally invaded by others. (2) Private space, private activities and private information that others do not want to know. It should be said that there is overlapping among the three. Because private space often carries out private activities or stores private information, such as husband and wife’s sexual life in the house, personal diaries stored in personal laptops or software programs. But it doesn’t completely overlap, because there are also private activities and private information in the public space. For example, in the lobby of a restaurant, two friends are chatting while eating, which is also a private activity and cannot be eavesdropped by others or made public. Private space is opposite to public space. Item 2 of Article 1033 of the Civil Code lists private spaces such as "houses and hotel rooms", but it is not limited to this. Private spaces also exist in public places such as restaurants, parks, banks and stations. In addition, private space includes not only physical space, but also intangible space, such as e-mail, WeChat group, nail group, etc., and also belongs to private space. Private activities refer to activities that natural people don’t want to be known to others.Such as the dinner of relatives and friends, the conversation between friends, etc.
Private information is also called private information. China’s civil code does not divide sensitive information and non-sensitive information, but divides personal information into private information and non-private information. As for the identification of private information, it should be said that some of them are uncontroversial, such as personal health information, criminal record, property status, sexual orientation, etc., and definitely belong to private information. However, the name, appearance, gender, etc. of a natural person are not private information, because these information, especially names, are originally used for social communication and cannot be used as private information. Whether some personal information belongs to private information is controversial, such as personal online reading records, web browsing information, etc. Because our country adopts different protection methods for private information and non-private information in law, it is very important to distinguish them in judicial practice in the future. The author thinks that the obligee should not unilaterally decide whether a certain information belongs to private information, that is, it should not define private information from the obligee’s subjective understanding, but should first judge it according to the provisions of laws and regulations. If there is no provision, it should consider the following two factors comprehensively: (1) The more important the information is to safeguard the personal and property rights, personal dignity and personal freedom of natural persons, the more important it is. (2) How important is the information to maintain normal social communication and information freedom? The more important it is, the less it belongs to private information.
Second, the nature of personal information rights and interests
In order to coordinate the relationship between the protection of personal information of natural persons and the free flow and utilization of information, China’s Civil Code does not stipulate the right to personal information, but uses the expression of "personal information protection". Nevertheless, from the relevant provisions of the civil code on the protection of personal information, we can know that: first of all, natural persons enjoy civil rights rather than public rights for personal information. The core feature of personal information is identification, that is, only information that can identify a specific natural person belongs to personal information. This feature determines that the protection of personal information is not an end in itself, but a risk of infringement on the personal property rights and interests of natural persons, even personal dignity and personal freedom caused by the processing of personal information. Therefore, from the perspective of the natural person as the subject of personal information, its main interest is a defensive interest, that is, the interest that the natural person enjoys for personal information to prevent personal property rights and interests from being infringed or even personal dignity and personal freedom from being infringed or damaged due to the illegal handling of personal information. Although it is necessary to coordinate various interests in the protection of personal information, including the protection of natural person’s rights and interests, the maintenance of reasonable freedom of behavior and public interests, the confirmation of natural person’s personal information rights and interests cannot be opposed to the coordination of various interests around personal information. The legal confirmation and protection of the personal information rights and interests of natural persons is itself the definition of the freedom or interest boundaries of other subjects around personal information.
Secondly, the rights and interests of personal information protect the personality interests of natural persons. Although the Civil Code does not stipulate the right to personal information, the second paragraph of Article 990 of the Civil Code stipulates: "In addition to the personality right stipulated in the preceding paragraph, natural persons enjoy other personality rights based on personal freedom and personal dignity." Therefore, the personal information rights and interests of natural persons can be classified as other personal rights and interests of natural persons based on personal freedom and personal dignity. Articles 1037 and 1029 of the Civil Code stipulate the specific content of personal information rights and interests.
Thirdly, the rights and interests of personal information can protect the spiritual and economic interests of natural persons. China’s civil legislation and judicial practice always adhere to the unitary protection mode of personality right, that is, the protection of spiritual interests and economic interests is realized simultaneously through the personality right system. On the one hand, if property losses are caused by infringement of personal information rights and interests, the infringer may, according to Article 182 of the Civil Code, require the infringer to compensate according to the losses of the infringer or the profits of the infringer; If it is difficult to determine the loss and profit, the people’s court shall determine the amount of compensation according to the actual situation. On the other hand, if the infringement of personal information rights and interests causes serious mental damage, the infringed person has the right to request compensation for mental damage according to the first paragraph of Article 183 of the Civil Code. Therefore, there is no need to create a separate property right of personal information to protect the economic interests of natural persons on personal information.
Third, the difference between privacy and personal information rights and interests
Privacy and personal information rights and interests are two different personality rights and interests stipulated in China’s civil code, both of which can only be enjoyed by natural persons. The close relationship between the two shows that private information belongs to both privacy and personal information, and the legal provisions on the protection of personal information can be applied. Therefore, the second paragraph of Article 1034 of the Civil Code stipulates: "Private information in personal information shall be subject to the provisions on privacy; If there is no provision, the provisions on the protection of personal information shall apply. " However, there are obvious differences between privacy and personal information protection.
1. The strength of legal protection varies with the nature of rights and interests. As a specific personality right, privacy right belongs to absolute right and domination right in nature, and has the effect on the world. Any organization or individual must respect the right to privacy and shall not infringe upon or hinder it. Personal information rights and interests are not specific personality rights, let alone absolute rights and control rights, but only personality interests protected by law. This difference in nature determines that there are the following differences in the intensity and density of protection: (1) Whether the prohibition system of personality right protection is applicable is different. When the right of privacy is infringed, the obligee can apply the prohibition system of personality right stipulated in Article 997 of the Civil Code. However, when personal information is infringed, it cannot be applied. (2) Whether the fair use system is applicable is different. Although there are restrictions on the right to privacy, there is no reasonable use of the right to privacy. Because the right to privacy is very important to the personal dignity of natural persons. The protection of personal information must coordinate the relationship between the protection of natural person’s rights and interests and the free and reasonable use of information. Therefore, according to Article 999 of the Civil Code, those who conduct news reporting and supervision by public opinion for the public interest can use personal information reasonably. At the same time, Article 1036 also specifically stipulates the exemption reasons for infringing personal information. None of these provisions apply to the right to privacy. (3) The legal rank of whether exceptions can be stipulated is different. According to Article 1033 of the Civil Code, the exception for infringement of privacy can only be made by "law"; According to the first paragraph of Article 1035, "laws and administrative regulations"You can make other provisions on whether it is necessary to obtain the consent of a natural person or his guardian to handle personal information.
2. Whether it can be used by others is different in commercial utilization. Privacy holders can dispose of their rights by themselves, such as disclosing their private information on the Internet or to the media, but privacy cannot be licensed to others. Because the right to privacy is mainly a passive defense function, it does not have the power to actively use it. Permission to use privacy will violate the mandatory provisions of laws and administrative regulations or the consequences of public order and good customs. Personal information can be used by others.
3. The rules for handling personal information are different. According to the fifth item of Article 1033 of the Civil Code, dealing with other people’s private information is either with the "explicit consent" of the privacy holder or according to the law, otherwise, any organization or individual’s behavior of dealing with other people’s private information constitutes an infringement of privacy. However, according to Article 1035 of the Civil Code, personal information dealing with non-confidential information is either in accordance with the provisions of laws and administrative regulations or with the "consent" of the natural person or his guardian. It can be seen that there are two differences in the rules for handling private information and non-private personal information in the Civil Code: First, the consent of the obligee must be obtained for handling private information, while the consent of the natural person or his guardian can be obtained for handling non-private personal information. In other words, the guardian can’t agree with others to handle the private information of the ward without authorization. This is because privacy is more significant to the obligee. Secondly, it is necessary to obtain the "explicit consent" of the obligee when dealing with private information, while it is necessary to obtain the consent of the natural person or his guardian when dealing with non-private personal information. Explicit consent means that the natural person should not only express his consent in accordance with the law, but also express his intention to deal with the private information separately. Consent is not required to be a separate consent, nor is it required to be made only for the specific personal information being processed, but it can be a general consent.
(The author is a professor at Tsinghua University Law School)