捍卫权利模式——个人信息保护中的公共性与权利

Defending the Model of Rights-Publicity and Rights in Personal Information Protection

个人信息权和个人信息受保护权是两种相对立的模式,学界通常认为个人信息权赋予个人排他性的支配权,这与个人信息的公共性相矛盾。个人信息的公共性并不必然反对权利模式。一种广义的公共性包含着个人信息所负载的公共利益,个人信息的公开化也是网络时代个人和商业交往的必要前提,但这并不意味着要否定个人信息保护的权利模式。公共利益具有多样性,正是某些公共利益支持了权利。权利所蕴涵的主张权确保了人的尊严和自由,这也是个人信息保护法的立法宗旨;个人信息受保护权做不到这一点,它不具有义务指向性。但在立法模式上,个人信息保护法要以义务性规范或禁止性规范为主,这是由网络空间个人信息的性质决定的。

The rights model and power model of personal information protection are two opposite models. Scholars generally believe that specifying the right to personal information is equal to giving individuals exclusive control, but this belief contradicts the publicity of personal information. Therefore, personal information cannot become a right, but can only become an object of legal protection. Even if it can be recognized as a right, it is only a right to legal protection of personal information. In the era of big data, the existence of personal information is indeed public, but this does not mean that social control should replace personal control, because publicity in this sense does not necessarily oppose the right model. This has been illustrated by the legislative practices of the dignity-based basic human rights protection model in the EU and the property protection model in the US. Indeed, the publicity in a broad sense includes the public interests borne by personal information and the publicity of personal information is also a prerequisite for personal and commercial communication in the network era. However, this does not mean to deny the right protection mode of personal information. Public interests(or common goods) are diversified, and some of them can support individuals to enjoy the right of information. An effective protection model is the result of the balance of various public interests, rather than one-way social control. Therefore, there is no single individual control or social control in personal information, rather a balance under the control of law. In this balance, the right to personal information still has independent value. The rights model has many advantages. It is conducive not only to establishing an open system of right protection, but also to balancing the rights and powers among various subjects, so as to have continuous information input, form a constantly updated information resources system, maintain the value of information and prevent it from degradation. The claim contained in the right ultimately guarantees human dignity and freedom, which is also the fundamental purpose of the personal information protection law. The "right to the protection of personal information" is unable do this. It does not have the direction of obligations and only constitutes a conceptual background of "personal information" legislation, that is, personal information should be protected. In the normative model of legislation, the personal information protection law is still dominated by obligatory norms or prohibitive norms, which is determined by the nature of personal information in cyberspace. It is of no practical significance for individuals to claim rights and remedies in the network era, but this does not contradict the rights protection law attribute of the personal information protection law.