个人信息处理中知情同意原则的存废、困境与变通

The Survival, Abolition, Dilemma and Modification of the Principle of Informed Consent in the Processing of Personal Information

大数据时代的降临使个人信息处理成为主要的技术活动,给个人信息安全带来了前所未有的挑战。在前信息时代,基于个人自主价值的发展,知情同意原则这一个人信息保护领域的至高法则逐渐得以确立,我国的立法实践昭示了其作为个人信息处理的正当性基础的地位,但日益复杂的数据活动使之左支右绌,学界出现了对其存废之争。立法者应当坚守知情同意原则的正当性,但亦需正视其适用上的实际困境,从立法层面制定具体的规范来予以变通,以期平衡理论与实践之间的冲突。

The advent of the big data era has made personal information processing a major technical activity, posing unprecedented challenges to personal information security. In the preinformation age, based on the development of the value of personal autonomy, the principle of informed consent, the supreme law in the field of personal information protection, was gradually established. Our country’s legislative practice has demonstrated its status as the basis for the legitimacy of personal information processing. However, the increasingly complex data activities have overwhelmed it, and there has been a debate over its existence and abandonment in the academic community. Legislators should adhere to the legitimacy of the principle of informed consent, but they also need to face up to the practical difficulties in its application and formulate specific norms from the legislative level to adapt it, in order to balance the conflict between theory and practice.