The system of symbols includes information about the individual's identity, work, family, property, health and other aspects. From this definition, it is more related to personality, so as long as the recognition of the right to personal information is a civil right, then, the right to personal information shall be a right of personality, and the right to privacy is also a right of personality, there is a close correlation between them, from the perspective of comparative law, countries have not been resolved to distinguish between the two, the main reason is that there is a certain degree of cross-cutting of the two kinds of rights in the rights of the content and other aspects. Specifically, the right to personal information and the right to privacy have the following similarities in the following aspects:
Firstly, the subject of the right of both are limited to natural persons, but not including legal persons.
From the viewpoint of the right function of the right to privacy, it is mainly to protect the peace and privacy of the individual's private life, therefore, the subject of the right to privacy should be limited to natural persons, legal persons do not enjoy the right to privacy, legal persons are entitled to commercial secrets as the content of the right to property to be protected. Similarly, the subject of the right to personal information is limited to natural persons. Because personal information refers to a natural person's name, gender, age, ethnicity, marriage, family, education, occupation, address, health, medical history, personal experience, social activities, personal credit and other information sufficient to identify the person. All of this information is identifiable in the sense that it can directly or indirectly point to a specific individual. Although the actual controller of the relevant information in the legal relationship of personal information may be a legal person, it is not the subject of the right to personal information. The information of the legal person does not have the attribute of personality, the legal person is not suitable to enjoy the right of personal information with the nature of personality right, the infringement of the legal person's information should be protected by the law of intellectual property rights or the law against unfair competition.
Secondly, both of them embody the autonomous decision of individuals on their private life.
Both personal privacy and personal information, are the exclusive rights of natural persons, and both manifest an individual's human dignity and personal freedom. In the case of privacy, the value of its creation is based on the protection of human dignity and the free development of personality. For example, the American scholar Whitman once argued that the concept of privacy throughout Europe is based on human dignity, and that privacy is both a specific development of human dignity and the maintenance of human dignity for the purpose of privacy. Privacy embodies respect for and protection of "individual self-determination", "individuality" and "personal integrity". As far as personal information is concerned, the reason why it has been increasingly strengthened protection, but also its embodiment of the dignity of the human personality and freedom of the existence of a close relationship between the human information is often referred to as the "right to self-determination", also embodies the protection of personal self-determination and other interests of the human personality.
Third, the two in the object of the intertwined nature.
The link between privacy and personal information lies in the fact that, on the one hand, a lot of undisclosed personal information itself belongs to the category of privacy. In fact, a lot of personal information is people do not want to publicize the private information, the individual does not want others to intervene in the private space, whether or not it has economic value, but also reflects a personality interest. On the one hand, some of the objects of privacy protection also belong to the scope of personal information. In particular, it should be seen, the development of digital technology makes many privacy at the same time with the characteristics of personal information, such as personal communication privacy and even the privacy of conversation
, can be digitized through the processing of technology, and may be included in the scope of personal information due to the characteristics of identity. Although certain privacy is subject to certain restrictions based on public **** interest, such as personal real estate information to be accessed within a certain range, it does not mean that such information no longer belongs to personal information, and many personal information belongs to the category of personal privacy. If the right to privacy is born in response to the freedom of the press, the right to personal information can be said to be born in response to the information society and information technology.
Fourth, the two have competing consequences.
The so-called competitiveness refers to the fact that the perpetrator of a certain behavior may cause the infringement of many rights at the same time, thus forming the phenomenon of infringement of many rights, resulting in competing responsibilities. On the one hand, the random dissemination of personal information characterized by privacy may also involve the violation of privacy at the same time. On the other hand, from the point of view of the manifestation of the infringement of personal information, most of the infringers also use the disclosure of personal information, thus very similar to the infringement of the right to privacy. Therefore, the law does not exclude the two rights of the protection of the object of the cross, perhaps for this reason, in our judicial practice, the court often take the right to privacy protection method for the right to personal information to provide relief.
In summary, personal information is closely related to the private life of individuals, but also a part of personal affairs, as long as it does not involve public **** interests, the privacy of personal information should be respected and protected, and the law protects personal information to a large extent is to safeguard personal information is not unlawful publicity and disclosure, etc.; On the other hand, the personal information and personal life and peace of mind have a direct link, private personal information is unlawfully disclosed may have a negative impact on the public interest. On the other hand, personal information is directly related to a person's peace of mind, and the unlawful disclosure of private personal information may jeopardize a person's peace of mind. In this close relationship, how to distinguish between the right to personal information and the right to privacy, but it becomes more necessary.
Third, personal information and privacy of the boundary
Privacy content mainly includes the maintenance of the individual's private life peace, personal privacy is not disclosed, the individual's private life autonomy decision, and so on. In China's current context, the mention of privacy, people usually think of the secret of private life, and the right to privacy is usually considered "the right to privacy". The right to privacy pays special attention to "hidden", the meaning of which includes two aspects: on the one hand, it refers to the state of life or private affairs alone; on the other hand, it refers to the secret of private life from the unlawful disclosure of others. Accordingly, the infringement of privacy is mainly illegal disclosure and harassment. The right to personal information, on the other hand, mainly refers to the domination and autonomous decision of personal information. The content of the right to personal information includes the individual's right to be informed of the collection and use of information, as well as the right to make decisions about the use of the information by himself or herself or to authorize the use of the information by others.Even for personal information that can be disclosed and must be disclosed, the individual should have a certain degree of control over it. For example, the right holder has the right to know to what extent the information will be disclosed, to whom it will be disclosed, and for what purpose it will be utilized by others. It is in this sense that civil law scholars refer to the right to personal information
as the "right to information self-determination".
Even though there is an intersection between some personal information and privacy, the focus of the privacy system is to protect personal secrets from unlawful disclosure, not to protect the control and utilization of such secrets, which is clearly not a matter of personal information self-determination. Accordingly, the infringement of the right to personal information is mainly manifested in the collection and use of personal information without permission and the infringement of personal information, which is mainly manifested in the form of illegal collection, illegal use, illegal storage, illegal processing, or illegal dumping of personal information, and other forms of behavior. Among them, a large number of infringements on personal information are manifested in the illegal alteration and processing of personal information.
Four, the protection of both
One of the important purposes of the distinction between the right to personal information and the right to privacy is to differentiate between the different ways of protection, in other words, in the case of infringement of the different rights, to provide the right holder with different remedies and ways of protection. Specifically, there are the following differences in the protection of the two:
First, the protection of personal information should focus on prevention, while the protection of privacy should focus on the aftermath of the relief. Because personal information is not only related to personal interests, but also may involve public **** interests, public **** security, while privacy is more related to individuals, and does not involve public **** interests or public **** security. It is for this reason that the protection of personal information may go beyond the protection of private rights and involve public **** interests. Therefore, our network information security law should focus on regulating personal information rather than privacy. For the protection of the right to personal information, should be taken to focus on prevention, the main reason is also should be in the law to achieve a balance between the status of the subject of information and information controllers, so as to give the subject of information to the right to know and the right to control # while the protection of the right to privacy does not give the subject of the right to a similar right, and therefore it is more focused on the relief after the fact.
Secondly, in the case of infringement of the right to privacy, the main use of moral damages to remedy, while the protection of personal information, in addition to the use of moral damages, can also be used in the method of property remedies. Since personal information can be commercially exploited, infringement of personal information may also result in the loss of the right holder's property interests, thus necessitating the use of property damages to provide relief to the victim. In some cases, even if it is difficult for the victim to prove that he or she has suffered a loss, it is possible to determine the amount of damages by proving that the victim has suffered a presumption of damage by proving that the perpetrator has gained a benefit, in accordance with the rule of "the benefit received is deemed to be a loss".
Thirdly, the protection of the right to privacy is mainly in the form of legal protection, while the protection of personal information is diversified and comprehensive, in particular, it can be protected by administrative means. For example, the government has the right to stop the illegal storage and use of other people's personal information, and use administrative penalties and other means. The relevant government departments have the right to delete information posted on the Internet that unlawfully publishes undesirable information or jeopardizes the safety of the public ****. In addition, in the case of infringement of personal information, it is possible to constitute a mass infringement, yet the damage may be minor to the individual victim. Therefore, it will form a kind of aggregate, large-scale damage against many people. For this kind of damage, due to the minor nature of the infringement, the individual victim is often weak and reluctant to hold the perpetrator responsible. For this kind of litigation is not enough motivation, need to be the national public authority as a public **** interests of the agent to pursue the responsibility of the aggressor, to protect the interests of the public ****.
Of course, because many personal information is inherently private, and many privacy is also expressed in the form of personal information, so when a certain behavior infringes on the privacy or personal information rights of others, it is possible to lead to the simultaneous infringement of both rights, thus constituting a competing infringement of the rights of the victim can choose to claim the way that is the most advantageous to them. For example, the random distribution of personal medical records violates both the right to privacy and the right to personal information.
But overall, the concept of personal information goes far beyond the scope of private information. It is precisely because of the many differences between privacy and personal information that the right to personal information should be separately stipulated in China's future civil code, rather than being attached to the right to privacy. The general recognition of the right to personal information can be left to the civil code of personality rights to complete, but for the specific details of the normative content of the future lawmakers should be developed by the personal information protection law such as a special civil law to be stipulated.