Viewpoint. On the constitutional value and protection system construction of citizens' personal information rights in the era of big data.

At present, the right of personal information has attracted the attention of academic circles and all walks of life, and legislative activities have been put on the agenda. However, the relevant provisions in the field of protection of the power content of personal information are not perfect, and before the practice of legislative activities, theoretical research should be carried out with legislative practice to provide a rich and sufficient theoretical basis for legislative practice, the content of the right to personal information, as well as the right to personal information and privacy, intellectual property rights of the relationship between the difference, through the analysis of the United States, Germany, the European Union, the relevant legal provisions of personal information to compare with the current situation of the right to personal information in our country, from the reality of our country, for the legal construction of the right to personal information to provide a modest force.

Keywords: personal information right privacy property attribute personality attribute

1. research background

With the advent of the era of big data in the 21st century, people's lives are becoming more and more convenient, economic development is getting faster and faster, and social development and changes have also accelerated the pace, followed by new social problems caused by the rise of emerging technologies. In the era of big data, people share the information of an unspecified majority of people in society, the traditional barriers between people have been broken, and people's lives are more convenient and convenient, however, personal information security has also become a hot social issue. On the one hand, personal information is related to personal rights and interests, on the other hand, it is related to social stability and development. In the era of big data, rapid information dissemination stimulates economic and social development, and various corresponding criminal activities are becoming more and more frequent, such as the case of Xu Yu, a female college student in Shandong Province, who was cheated of tuition and committed suicide, A female college student who was not involved in the matter was about to enter a turning point in her life when she received a telecom fraud, which made her family who was not rich be cheated to raise tuition fees. Finally, the female student committed suicide because she could not bear such a sudden attack psychologically. Such a case not only shows that my personal information was leaked and criminals used it for criminal activities, but also shows that, on the other hand, personal information security has been related to various small aspects of our lives. In this era of big data, we have the accompanying digital personality. Similarly, we should enjoy the supporting legal rights. With the development of society, new social relations have emerged in the society, and the individual subject has a new power law to confirm and protect it. This paper discusses the content and ownership of personal information power to improve the system framework of personal information, which is conducive to improving the social order and the legal order in related civil rights, and enhancing the social recognition of personal information power, through the study of the nature of the content of personal information rights, it can guide and help the development of related industries and promote the development of society and social economy in the era of big data. Finally, what we hope to see is that in the society of big data sharing, people no longer worry about their personal information being used or illegally used by others, and the social and economic order develops prosperously and stably under a good information sharing mechanism.

Strengthen and improve the current analysis and research on personal information, and clearly define personal information power as a civil right, which is a distinction between personal information power and public power, which can better avoid the abuse of public power and protect citizens' private rights more specifically and perfectly. An important sign in a perfect and healthy society ruled by law is the smooth operation of public power and private power in a state of dynamic balance, then in the unique field of personal information, it is also very necessary to give citizens the right of personal information and to restrict public power reasonably and effectively. At the same time, improving the legal content related to the right of personal information can better integrate with the world and better integrate into globalization.

The Theoretical Basis of 2. the Right of Personal Information

(I) the concept of big data

Big data is also called massive resources. Big data is actually a professional term in the internet technology industry. Big data was originally applied in very cutting-edge fields in the world, such as physical science, environmental science, and biological science. It also includes some More special fields such as the military field and the financial field. With the development of the times and the progress of society, big data has penetrated into more and more disciplines and industries, in our daily life, we can come into contact with big data everywhere, all of which are related to the use and development of the Internet and information technology industry. Now the word "big data" has been pushed to the public. Most of the public only have a simple understanding of big data. In fact, there are still a few people who have a clear understanding of big data.

(2) Distinguish between the right to personal information and the concept of personal information

Personal information refers to all kinds of information that is recorded electronically or in other similar ways and can identify the personal identity of natural persons alone or in combination with other information. The scope of personal information includes: name, home address, mobile phone number, date of birth, personal ID number, etc. At present, the conclusion of personal information in the legal theory circle is roughly similar but also slightly different, for example, some civil law jurists believe that personal information should include personal growth experience, life experience, social relations, family members, income level, consumption records, home address, mobile phone number, fax number, learning situation, consumption situation, marriage and love history, while others believe that personal information refers to individual citizens only and has nothing to do with other social members, and do not violate the relevant provisions of the law and public order and good customs of all kinds of information. Scholars in Taiwan region of China have such a view that personal information should include two categories: one is information formed in one's own personality factors and personal private life, and the other is information generated in the survival of individuals in social interaction. The above-mentioned views are either too broad to be too chivalrous, or some confuse personal information with privacy, the scope of personal information is very wide, as long as certain information can play the role of identifying individuals should be regarded as personal information, and the scope of the object of privacy is relatively narrow relative to the right of personal information.

With the development of society and the explosion of personal information, it is necessary to establish corresponding power-personal information right to protect personal information in special fields. Personal information right refers to the power of personal information owner to decide and control his personal information according to the provisions of the law, as well as the power to exclude others' interference negatively. The general provisions of civil law stipulate that personal information is protected by law, no one may illegally collect and exploit other people's personal information. And in the practice of legislative activities, some members of the committee to strengthen the supervision and management of the law to strengthen the protection of personal information, with the development of society and the sound of the legal system, the status of the right of personal information has been recognized, the right of personal information is a private right that all civil subjects should enjoy in accordance with the law, the right of personal information is not only related to the security of personal information, on the other hand, personal information and individual personality linked, it is closely related to the individual's personality right, and the violation of the right of personal information will inevitably lead to the violation of personal personality.

The Legal Nature of (III) Personal Information Right

In the academic circles of our country, the disputes of the ownership of personal information right are mainly personality right and property right. The author thinks that personal information right should belong to personality right instead of property right. First of all, the biggest and initial function of personal information, the object of personal information right, is to identify individuals and reflect their personality. A large amount of information is used to record individuals, record and identify them, the emergence of property attributes is revealed with the progress of the times and the development of economy. From the time line, property rights appear later on personality rights. In terms of proportion, property rights are relatively small on personality rights. With the development of economy and society, the economic value of personal information also has inestimable development, but from the current objective reality, The power attribute of personal information right should be personality right rather than property right.

Similarities and Differences between the Right to Personal Information and the Right to Privacy in (IV)

In fact, there are many similarities between the right of personal information and the object of the right of privacy. The scope of the two is similar. First, the right of privacy and the right of personal information belong to the right of personality, which is a kind of power of spiritual nature. Moreover, the two include both spiritual interests and interests of property nature. The difference between the two in this respect is that the property interests of the right of personal information are more prominent, for example, in today's social conditions, the property benefits that a person's personal information can bring to the subject are obviously greater than the property benefits that personal privacy brings to the individual, such as entertainment stars, sports stars, and officials with high exposure. Their personal information is far greater than the economic benefits brought by their privacy, and the value of commercial advertisements used by the personal images of various stars is huge. Second, the right to privacy and the right to personality both contain negative power. The right to privacy is a negative civil right, which is manifested in that only when one's privacy is illegally violated can certain measures be taken to remedy it, while the right to personal information includes both positive power and negative power. For example, the subject of the right to personal information can independently decide whether to share it with others and how to spread it, these are all positive powers, but also include negative powers, such as when their personal information is illegally infringed, they can be remedied through litigation, request and so on.

There are differences between the right to personal information and the right to privacy. The right to privacy emphasizes that the "hidden" of personal privacy can be called privacy as long as it is not related to the public area of the society, while the identification of personal information is very strong. His privacy is not strong, and it can be recorded on various carriers. The existence of privacy can be recorded on a certain carrier, such as the emotional state of the individual, or it can exist in the heart of the individual, such as the psychological state of the individual, and personal information must remember a certain carrier before it can be expressed. For example, if our chat with friends is not recorded in a formal form by audio and video recording, it can only be regarded as a kind of privacy, not as a kind of personal information.

The Dilemma of Personal Information Protection in the Era of 3. Big Data

The Dilemma under the Protection of (I) Property Interests

It is the viewpoint of some scholars to merge the protection of personal information right into the protection mode of property right. Some scholars point out that personal information right should be completely merged into property right. Some scholars also point out that with the development of the information age, personal information brings more and more property rights, and a new kind of property right such as personal information should be produced. Some scholars also point out that, the protection of personal information system is incorporated into personality right and property right. When the personal information of the subject suffers from personality damage, the method of personality damage can be sought. When the personal information suffers from property damage, the remedy of property right can be sought. However, the author thinks that the protection of personal information right should be mainly incorporated into the protection of personality right, and the nature of personality is the main part of personal information right, although some scholars claim that the attribute of personal information right belongs to both personality right and property right, this kind of claim is contrary to the general traditional theory of civil law, because the traditional theory of civil law holds that a power object can only carry one type of power, so it is very limited to adopt the protection method of property nature rights and interests for the protection of personal information right.

The Dilemma under the Protection of (II) Personality Rights and Interests

It is the main academic theory that chooses to include personal information in the field of personality rights protection. This kind of protection mainly includes three kinds, namely, the specific protection of personality rights, the protection of privacy rights, and the protection of general personality rights. In the specific protection of personality rights, the main power attribute of personal information rights is still right, although this kind of claim does not deny the attribute of property rights in personal information rights, and recognize that with the development and progress of the information age, personal information in the property rights and interests are immeasurable, but the problem with this claim is that although the personal interests in the right to personal information to take a clear way of protection, and on the property rights and interests have not made detailed specific provisions, there is still a gap to be filled. The protection of the right to privacy protection in the way that the protection of the right to personal information should be included in the right to privacy, that the right to personal information and

The right to privacy is the same. The right to personal information is included in the scope of the right to privacy. This kind of proposition is similar to the protection of personal information in the United States on the surface, but its essence is still very different. The right to privacy in American law is a very broad concept and a constitutional power. In American law, the right to personal information is beyond reproach as a branch of the right to privacy, in our country, the right to privacy adopts the concept of privacy in a narrow sense, and the right to privacy is only a branch of the individual's general personality right. Therefore, in our country's legal system, the right to personal information and the right to privacy are two parallel powers, and it is not feasible to integrate the right to personal information into the right to protection. The third way to protect the right to personal information is to adopt the general personality right, under this kind of protection mode, the personal information right is protected by adopting the red macro way, but the problem is that the general personality right is a macro protection mechanism, and the content of the personal information right needs to be specific and clear, and the corresponding protection method needs to be clear. Obviously, this protection mode also has certain limitations.

4. Perfection of Personal Information Right Protection System in the Era of Big Data

(I) the correct selection of protection methods

The author believes that the protection of personal information should be based on personality rights. Personal information rights have a strong personality nature. Although the general personality rights protection methods, specific personality rights protection methods, and privacy rights protection methods discussed above have certain limitations, it is undeniable that specific personality rights protection methods adopt specific and clear protection methods, which can maximize the protection of personality rights in personal information rights, after all, the right of personal trust is the right of personality attribute.

(II) Treat Property Rights Correctly

The characterization of personal information right as the rights and interests of personality attributes does not deny the property rights and interests it contains, and the proportion of the total property rights and interests of personal information right is increasing with the development of society and the rapid development of information technology. Therefore, as a special kind of rights and interests, corresponding protection mechanisms should be adopted, such as adopting the same protection mechanism as copyright, defining copyright as a special kind of rights and interests and including personality rights and property rights, when the property rights and interests in the right to personal information are damaged, the remedies of removing obstacles, eliminating dangers and compensating for losses are adopted.

(III) clarify the boundaries between the right to personal information and the right to privacy

It is undeniable that there are great similarities between the right to personal information and the right to privacy, but we should strengthen the analysis and research of the two, and make a clear boundary between the two, so that we can find correct and reasonable remedies when the individual's personal information or information rights are damaged. Therefore, we should make specific, clear and perfect provisions on the content scope and rights and interests remedies of the right to personal information and privacy, when an individual's right to personal information or privacy is violated, the individual can be accurate in the way of relief or in the two kinds of power of relief in several ways competing, the subject can choose one of the two in a sentence of law.

(IV) improve the corresponding legal provisions

The right to decide independently on information also includes the right to decide on information generation, that is, whether the information subject forms personal information; The right to decide on information preservation means that the information subject decides by himself whether his personal information is recorded and stored. The right to decide independently on personal information reflects the property attribute of the right to personal information. The information subject can decide independently whether to use his own information in a positive or negative way and whether to decide whether others can use his own information. The right of personal information confidentiality means that the information subject discloses or keeps his personal information confidential according to his own wishes. When his personal information is violated, he can take a protection method. Personal information correction right refers to the management and control of the information subject to his own personal information through various ways. When the personal information of the subject is wrongly registered, the registration manager can be required to correct the registration. In real social affairs, when the personal information is wrongly registered, the information subject wants to correct the registration, which is against the legislative purpose, in addition, some wrong registration of personal information is caused by some organs and units, and the problem of personal information correction needs to be solved urgently. Therefore, it is necessary to establish a perfect personal information right system and protect the personal information right through legal provisions. Information inquiry right means that after the personal information of the information subject is collected by the information collector according to law, the information subject has the right to know the whereabouts of his personal information and how to store and transmit it, the perfection of personal information rights can only be determined when the information subject has a better grasp of their own information flow. The most typical example in today's society is all kinds of harassing phone calls. How and by whom our personal information was leaked, and the information subject has no way of knowing. Therefore, it is necessary to confirm the collection, transmission, acquisition and use of personal information through the law, use the purpose to protect more clearly. When confirming and guaranteeing the real right of the power holder, the first thing to confirm is the power holder's possession of the object. No one except the owner can control and possess the object. This is the legislative background and legislative foundation when establishing the real right. Therefore, the legislative background and legislative foundation of the right of personal information should be established first. The right of personal information is different from the real right, the subject of property rights has exclusive rights to the object, and a large part of the role of personal information in the subject of personal information rights is to share and spread with others. Therefore, in legislation, attention should be paid to ensuring not only the subject's right to control personal information and legal rights, but also To ensure that the efficiency of information sharing is safe, in order to promote social progress and economic and social development. The author thinks that the power content of personal information right should include the right of information self-determination, that is, individuals have the final decision on all kinds of processing of their personal information. The right of information correction means that when an individual's personal information is recorded incorrectly, the subject has the right to correct it in a reasonable way. The right of information inquiry means that when the individual's information is shared and spread according to the individual's wishes, the individual has the right to process and spread of information, various procedures such as storage methods are used to query to ensure that personal information is not illegally violated; the right to information remuneration, that is, personal information is a person's intangible property, and the subject has the right to dispose of personal information independently according to his own wishes and enjoy the corresponding remuneration The right to claim includes tangible material remuneration and intangible spiritual protection.

Conclusion:

Establishing and perfecting the protection mechanism of personal information right is the objective requirement of the rapid development of society and economy, and also the inevitable requirement of strengthening the combination of socialist legal system construction and social informatization. Strengthening the research on personal information right can better protect citizens' private rights and interests, make the development of personal information right get more long-term and perfect, and also promote the development of social economy more green, prosperous and stable, with the in-depth study of the theory of personal information rights, it has continuously injected fresh blood into the protection of citizens' personality rights, and enriched and expanded the relief methods of citizens' personality rights. The establishment of the right of personal information of citizens not only enriches the basic theory of civil law, but also enriches the protection system of personality right in the constitution, and the appearance of the right of personal information of citizens plays a positive guiding role for all kinds of social relations and social problems that will appear in the rapidly changing society to a certain extent, when there are such similar practical problems, we can use this as a direction template to set up relevant mechanisms and systems to solve the problems, and the construction of personal information rights can counteract the process of social legal construction in social reality. On the one hand, the construction of citizens' personal information rights is essentially a part of perfecting and developing the socialist legal construction, on the other hand, the construction of citizens' personal information rights can promote the process of a society ruled by law and a country ruled by law.

References:

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