The justification and cognizance of risky damage about personal information infringement
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D923

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    Abstract:

    Personal information infringement damage stems from infringement of rights and interests relating to personal information or other personal and property rights and interests, and the new characteristics and complex forms of damage have caused relief difficulties. Constrained by the inability of traditional damage concept to respond to the actual needs of risk governance in the information society, personal information infringement risky damage (increased risk of future harm, costs of risk prevention, anxiety about the increased risk of future harm) faces difficulties when seeking relief based on traditional theory of infringement damage. Resolving the problem of personal information infringement risky damage relief requires both theoretical support and methodological guidance. The compensability of risky damage can be justified because the risk conforms to the qualitative prescriptiveness of damage (the essential attribute of legal disinterest) and the quantitative prescriptiveness (conforms to specific legal standards), and it is the objective need to realize the multiple functions of tort law in the era of big data and conforms to the logical deduction of the legal system. The cognizance of risky damage can be based on dynamic system theory as the methodological basis for interest balancing, the "substantial risk standard" and "reasonableness standard" constitute the basic evaluation in the dynamic system theory analysis framework, and the type and quantity of personal information, the purpose, method, duration of information processing, the circumstances of risk prevention measures taken and the impact consequences and so on are the elements in the dynamic system theory analysis framework, and the relevant elements should be comprehensively measured in specific cases and judged in combination with corresponding legal standards.

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程海玲.个人信息侵权风险性损害的证成与认定[J].重庆大学学报社会科学版,2023,29(5):198~211

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  • Received:
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  • Online: October 24,2023
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