刑法视野下公开个人信息的保护

Protection of Public Personal Information from the Perspective of Criminal Law

已公开个人信息是数字时代的重要货币。然而,当前却出现大量侵犯公民信息权益,但司法实务部门无法做到重点打击的现象,对于“经被收集者同意”条款的解读偏差、坚守“知情同意”而过度依赖“二次授权”规则都是导致这一困境的原因,究其本质,是刑事立法滞后性带来的负面影响。本文以此为问题导向,深刻把握法秩序统一性原理,结合前置法,有效限缩“知情同意规则”,将“合理处理”原则作为规制“未经同意出售、提供公开个人信息”行为的指导原则,基于“情景脉络完整性”理论,按照个人自行公开与其他已经合法公开两种形式对“合理”标准的判断构建路径,以期对未来刑事的立法与司法有所帮助。

Public personal information is an important currency in the digital age. However, there are currently a large number of violations of citizens’ information rights, but judicial practice departments are unable to focus on cracking down on them. The interpretation deviation of the “consent of the collected” clause and the excessive reliance on the “second authorization” rule due to the adherence to “informed consent” are the reasons for this dilemma. In essence, it is the negative impact caused by the lagging criminal legislation. This article takes this as a problem-oriented approach, deeply grasps the principle of the unity of legal order, and combines the pre existing law to effectively limit the “informed consent rule”. The “reasonable processing” principle is used as a guiding principle to regulate the behavior of “selling and providing public personal information without consent”. Based on the “completeness of the context” theory, a path is constructed to judge the “reasonable” standard in two forms: personal self disclosure and other legally disclosed forms, to be helpful for future criminal legislation and justice.