French eye attention ｜ New idea of consumer personal information protection in the context of the Internet

01

In the Internet background

Consumer personal information is analyzed by the status quo status quo

On the Chinese referee document network search for personal information protection disputes and related cases, as of November 14, 2021, the author retrieved a total of 404 public referee documents. Through the analysis of retrieval cases, consumers' claims to invite the court to protect their personal information have a low victory rate and focus on liability for infringement liability, and rarely defend their rights through contract law. From the perspective of the low winning rate, the first is that the case is improper. Most consumers have filed a lawsuit with infringement of privacy, reputation, and portrait rights. The case is not appropriate, and the claims are rare to support. The second is difficulty in proof. Because the information is intangible, it is scattered in multi -faceted transmission, which makes it difficult to prove that the infringement liability constitutes the four elements. The third is that mental damage compensation is difficult to obtain support. Consumer personal information is more violated by illegal infringement, which will propose compensation for mental damage, but usually the premise of serious consequences of mental damage is difficult to support it.

02

In the Internet background

Contract method for consumer personal information protection

Path

1

Based on the meaning of the contract, the confidentiality clause of the autonomous agency

The contract is an agreement that the contract subject reaches an agreement under equal negotiation. If it does not violate the law, the contract subject can freely agrerive the content of the contract. The academic and practical circles seem to ignore the advantages of this path. If the contract subject agreesize the confidentiality clause, once the contract is leaked or the other party's information is leaked, it shall bear the liability for breach of contract. Compared with the constituent elements of the liability for infringement, the parties do not need to prove whether the harmful person has fault, and it reduces the parties' proof liability. If the two parties establish a contractual relationship, the liability for breach of contract may be agreed by the parties within the scope allowed by the law, and the compensation amount or its calculation method is agreed. This type of agreement has the function of facilitating lawsuits. In addition, according to Article 966 of the Civil Code, if the damage party chooses to request the default party to bear the liability of breach of contract, it will not affect the request for compensation for mental damage.

At the same time, in accordance with the law, network service providers should provide user agreements with privacy clauses or personal information protection clauses, but they usually use their advantageous position to set up format clauses to avoid their own responsibilities. Compared with ordinary format clauses, there are some problems with such format clauses, such as unprecedented obligations, unilateral change agreements, "a package of authorization", etc. For the specifications of electronic format contracts, relevant departments must strengthen supervision of network service providers. At the same time, industry associations must also play a supervision role to produce formulas, especially for confidentiality clauses. It is worth noting that Article 496 of the Civil Code expands the category of the prompt explanation obligation, and will be included in the category of the provider of the formula terms with the terms of the format of the format. The supervision of the format clause.

2

Confidential obligations based on legal regulations

In the usual consumption scenarios, consumers will not sign a special confidential contract with merchants, or encounters the terms of the format of confidentiality, and there is no relying on contracts. It is worth noting that Article 501 of the Civil Code compared to the previous provisions, "other information that should be kept confidential" and expand the scope of confidentiality obligations. Other information, including "personal information". The confidentiality obligation here is a legal first -in -contract obligation, that is, the parties' obligations such as instructions, attention, and protection based on the principle of honesty and trustworthiness are based on the principle of honesty and trust. Even if consumers and merchants have not agreed to confidential clauses, the confidentiality obligations generated based on the principle of honesty and trust are also a legal obligation that merchants should fulfill. Although there is no consensus on the obligation to attach obligations in the judicial identification, the author believes that the violation of the obligations can cause the continued performance, the same performance of the defense, and the liability for damage compensation due to the different degree of violation. one.

03

The protection of consumer personal information

Application with the protection of contract law

In judicial practice, the parties cannot claim that the application of another request should not be claimed when they choose not to obtain compensation or insufficient compensation. From the perspective of protecting the rights and interests of consumers, the author considers its judicial costs, and tries to choose the most possible judicial strategy for consumers. Of course, the case needs to be measured specific. Here, only the idea of ​​reference can be provided.

1

The personal information that is infringed only involves the inherent interests and has nothing to do with the performance of the contract.

The debt law protects the inherent interests of civil entities, performing interests (or expected benefits), trust interests, etc. Generally speaking, the infringement law protects the inherent interests, and the contract law protects the benefits. However, the infringement law is based on the entire legal order. The inherent interests in the contract are also protected by the infringement law. If the protection of the inherent interests has nothing to do with the benefit, the rules of the infringement law are generally applicable. In short, the personal information that consumers are violated have nothing to do with their consumption or receiving services. It has nothing to do with the performance of the benefits without the basis of a contract. The inherent interests should be proceeded through the infringement path.

2

Conditions that have been violated with closely related to the contract of the contract

If the protection of inherent interests is the contract performance of the contract itself or is closely related to the benefit of the contract, the relevant rules of the contract law should be applied. The inherent interest here is to perform the interests and there is no independent value. For example, consumers will make plastic surgery services through the Internet to receive plastic surgery services. Plastic surgery hospital allows customers to build files for physical conditions through their online apps, and the two parties agree that the hospital has a confidential obligation to confidently confidential information on all their plastic surgery records and physical conditions, and violates the contract to violate the contract. One party must pay a liquidated damage. If the contract is fulfilled due to poor storage of plastic surgery hospitals, the leaks of plastic surgery are leaked, and consumers should prefer the contract method to defend their rights at this time. Easy, coupled with a liquidated damage, the difficulty of litigation is lower than the privacy disputes. 3

The infringed personal information and the contract to fulfill weak associations

Either personal information is an attachment obligation to violate the broad sense. After the contract for contracting, fulfilling, and fulfilling the principle of honesty, it is an example of the integration of infringement law and contract law. The precedent obligations stipulated in Article 501 of the Civil Code. Some scholars believe that the violation of obligations attached to the contract is incomplete, also known as incomplete performers, which is responsible for breach of contract. In the case of constituting harm, the liability for breach of contract and the liability for infringement. At this time, the personal information that consumers are violated are not closely linked to the contract owner's payment obligation. From the perspective of protecting personal information, the infringement liability and the liability for breach of contract are equivalent to the permit.

This article was originally included in the People's Court Newspaper

August 4, 2022 Edition 7

Author: Tong Jingjing

Edit: Fang Shuo

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