“大信用”背景下的信息隐私保护——以信义义务的引入为视角

Protection of information privacy under the background of “Big Credit” from the perspective of incorporating fiduciary duty

社会信用体系背景下的信用概念已经超越了传统金融或商业领域的信用概念,涉及社会治理新手段,因此可被称为"大信用"。而"大信用"概念下的信用信息利用,是围绕海量信用信息的收集、批量处理和精准应用展开的,其利用虽然能够改善不同信用主体间信用信息不对等的困境,并通过信用产品的普遍使用潜移默化地优化社会诚信氛围。但其背后海量信用信息的聚合性使用,使得信用信息控制者逐渐成为信用信息的汇集中心,且与信用主体之间形成一种新的不对等关系。这种关系加大了信息隐私被侵害的风险,给信息隐私的保护带来巨大的挑战。目前,各国普遍采用"知情同意"规则保护信息隐私。该规则虽然突出信息自决理论的核心要义,也为信用主体控制信用信息和保护信息隐私提供了形式上的可能,但在实际运行中却存在不足,很难发挥预期的保护作用。为此,我国宜引入信义义务规则,赋予信用信息控制者对信用信息利用的"自由裁量权",同时明确其严格的信义义务,对违背义务者追究信托责任,从而使"知情同意"规则能够更好地解决信用信息的利用与信息隐私保护之间的利益平衡问题。

The concept of credit under the context of the social credit system construction has gone far beyond the concept of credit that is popular in the traditional financial or commercial field and it becomes the new measure of social governance, so it can be called the “Big Credit”. The utilization of credit information under the concept of “Big Credit” is based on collecting, batch-processing and accurately applying massive credit information. Although its utilization can solve the problem of the credit information asymmetry between different credit information controlling institutions to a large extent and largely improve the social credit atmosphere through the universal use of credit products, the convergent use of massive credit information makes the credit information controllers gradually become the gathering center of credit information, hence forming a new and unequal relationship with the credit subjects. Such relationship increases the risk of the violation of information privacy and brings great challenges to its protection.Currently, the rule of informed consent is commonly adopted by many countries. This rule highlights the core essence of information self-determination theory and provides the formal possibilities for credit subjects to control and protect their credit information. However, there still exist many obstacles in practice, which makes it hard to for the rule to achieve its expected protective function. Therefore, China should introduce the fiduciary duty rule to give credit information controllers the discretionary power of credit information utilization, but at the same time clarify their fiduciary duty and follow up with entrustment liability if they fail the duty so that the rule of informed consent can better solve the problem of the balance of interests between the use of credit information and the protection of information privacy.