个人私密信息侵权归责原则适用研究

Research on the Application of the Principle of Liability for Infringement of Personal Confidential Information

《个人信息保护法》与《民法典》均规定了侵害个人私密信息的归责原则,差别在于前者适用过错推定原则,后者将其定义为一般侵权,适用过错责任原则。两者对私密信息保护难免发生重叠,然基于信息主体与侵权主体之间强弱地位的不平等,信息主体对主观过错要件的证明难度较大,故为有效保护信息主体的合法权益,构建其与侵权主体之间利益的平衡性,个人私密信息侵权应优先适用过错推定原则,由侵权主体证明其在信息处理中无主观过错。

The Personal Information Protection Law and the Civil Code both stipulate the principle of liability for infringement of personal confidential information. The difference is that the former applies the principle of fault presumption, while the latter defines it as general infringement and applies the principle of fault liability. The protection of private information between the two is inevitably overlapping. However, due to the unequal status between the information subject and the infringing party, it is difficult for the information subject to prove the subjective fault elements. Therefore, in order to effectively protect the legitimate rights and interests of the information subject and establish a balance of interests between them and the infringing party, the principle of fault presumption should be applied first in personal private information infringement, and the infringing party should prove that they have no subjective fault in information processing.