On the value and theory basis of personal information protection in tort law: Analysis perspective based on big data paradox
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D913

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    Abstract:

    In order to effectively deal with the conflict between the protection of personal information and the development of information industry, which caused by the development of information technology, we must innovate and optimize the system design of personal information protection in tort law, affirm the right of personal information to be protected, limit the right of exclusive control of the information subject, check and balance the "data power" of information processors, so as to restrain the arbitrariness and abuse of power of personal information processors, and seek for the "win-win" for the protection of human rights in information era and the built-in development space for the information industry. From the perspective of big data transparency paradox, power paradox and identity paradox, as a matter of fact, there are both positive and negative externalities in personal information processing. It determines that the legal protection of personal information should not only rely on the "rights-based approach", but also directly face the cognitive and structural difficulties in the era of big data, and reconstruct the path of the legal protection of personal information by using the "risk-based approach". The big data paradox determines that the tort law protection value orientation of personal information should not be simplified and absolute. Its essence is to seek an optimal solution in the game relationship between the secret collection and processing of information by information processors and the personal assertion of information transparency, the data privilege of information processors and the "transfer" or "sacrifice" of personal information rights, the identification of personal identity by information processors and the privacy protection of personal identity. Hence, the value orientation of personal information protection in tort law should not only be to maintain the personal dignity of citizens and guarantee human rights in the digital age, but also be to balance the orderly flow of information, cross-border transactions and various interests in the development of information industry. The big data paradox should not become an obstacle to the "win-win" goal of the "non-zero sum game" among the protection of personal information rights, the power of government information governance, and the development of the information industry. As an inducement of the source, it requires that the value orientation of personal information protection in tort law lies not only in the relief of damage suffered by information subject and the strengthening of boundaries of personal information rights, but also in restricting the possible infringement of personal information from public power, and clearly regulating the use of personal information by information operators and providing direction warnings of "negative adjustment". Therefore, the theory reasons for the protection of personal information in tort law are not limited to the theory of human rights protection, but also from multi-dimensional perspectives such as economic analysis theory, risk control theory, business income risk theory and corporate social responsibility theory. From the perspective of the above theories, the personal information tort liability system should become the "ballast stone" of personal information private law protection in the era of big data. In fact, the perfect system of personal information tort liability should be an important yardstick to measure the personal information integration protection system using public and private law at the same time and the modernization level of its governance ability.

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刘利平.个人信息侵权法保护的价值与理据新论——基于大数据悖论的分析视角[J].重庆大学学报社会科学版,2022,28(5):221~234

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  • Received:
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  • Online: November 07,2022
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