The transition from traditional offline society to digital society has transformed the way of thinking of legal professionals, and it has become a consensus to independently design and protect personal information. Personal information has the dual attributes of personality and property in the digital society. Personal rights and interests are exclusive to and enjoyed by individuals, while property rights and interests can be shared by information processors and individuals. The exclusivity of personality rights determines that information processors must have a legal basis for personal information processing and fulfill their personal information protection obligations. For the distribution of property rights and interests, it is not necessary to choose the private law path. By collecting digital taxes and establishing digital funds, people can obtain digital dividends, which may be a more suitable choice for digital social property distribution. Whether it is a traditional offline society or a digital society, the core pursuit of system design is to achieve integrity. The digital society uses personal information as a carrier to make it possible to measure people’s subjective integrity into objective integrity, and thereby realize the true nature of the digital society. value.
Personal information has existed since the beginning of human society. It is derived from individuals and marks the biological and social characteristics of individuals. In the traditional offline society, the recording of information mainly relies on the human brain, and the transmission method is mostly word of mouth. Social evaluation is related to an individual’s self-cognition and social recognition, and contains an individual’s spiritual value. From the perspective of humanistic care, the law has gradually established the protection of specific types of personal information, such as name, portrait, reputation, privacy, etc. These information are closely related to the personality attributes as an individual’s social evaluation and reflect the individual’s social evaluation interests. In order to protect these highly identifying personal information, the law stipulates various specific personality rights in the form of confirmation of rights in advance, and at the same time, it is guaranteed afterwards by systems such as tort liability. Traditional offline society not only protects personal information interests, but also protects original information about individuals or derived from individuals. Before the digital society, people used to record their thoughts through words and symbols. The meaning of these words and symbols is to represent subjective thoughts in an objective form, that is, in the form of information. However, the generation of such information condenses the unique intellectual labor of individuals and belongs to creative production, so the law is protected by the intellectual property system. It can be seen that there are two types of information derived from individuals in the traditional offline society, namely, personal information and original productive information, and a relatively complete legal protection system has been formed for these two types of information. Without the emergence of the Internet and cyberspace, systems such as traditional personality rights and intellectual property rights are sufficient to provide legal protection for information related to personality rights and intellectual property rights. The reason why personal information can become an independent civil rights and interests stems from the arrival of the current new social form—the digital society.
Information in traditional offline society is passed on orally or in writing, and is fixed by carriers such as the human brain and paper. In addition to personal information such as name, portrait, and privacy, other information such as gender, occupation, whereabouts, etc., has a low correlation with personality and is limited by the mode of transmission. The transmission speed is slow, the scope is limited, the distortion is high, and it cannot be stored for a long time. Effective The value is extremely low, so there is no need to create a special personal information system to protect it. However, information in the digital society, including the content recorded and carried by traditional media, can be digitized through data technology. The intervention of algorithm technology has brought about qualitative changes in the way of storing personal information, the speed of dissemination, and the scope of dissemination. As long as people use the network, they will inevitably leave traces on the network. This information can be infinitely copied in the cyberspace and recorded and fixed by countless storage media. If technical means such as blockchain are adopted, its content cannot even be changed. With the help of algorithms, information processors can collect, analyze, and control personal information, and ultimately generate various data products. Personal information can thus be physicalized, making it possible to create property value. Compared with the traditional offline society, the attributes of personal information in the digital society have fundamentally changed.
Data, algorithms and computing power are considered to be the three major elements of the digital society. Personal information is the most important category of data elements and has enormous commercial and social value. Whether it is compared to oil or soil, or oxygen or sunlight, it is nothing more than trying to illustrate its importance in the digital society. Of course, different metaphors contain different value orientations, or they are biased towards the economic utility of data and information. Or focus on legal protection of personal information. However, it is undeniable that without the existence of cyberspace or digital society, personal information only has the functions of descriptive and identifying individuals, and has no property value. The digital society is the premise of discussing and studying the legal protection of personal information.
Personal Information and Personal Information Right in the Digital Society
As a new type of human existence, digital society constitutes the institutional prerequisite for the independent protection of personal information. To discuss its legal roots, it is first necessary to clarify the core characteristics of personal information in a digital society. On this basis, the core controversy surrounding personal information in the digital society is how to find a balance between personal information protection and commercial utilization. The external manifestation of this contradiction is that the ownership of personal information rights is unclear, and the deeper reason is that the rights attributes of personal information are not truly understood and mastered. To clarify the ownership of personal information rights, it is still necessary to return to the institutional logic of civil law rights, and to clarify the legal attributes of personal information as the object of rights and the attributes of rights on it from the root.
(1) Personal information in the digital society
The data symbol composed of 0 and 1 is difficult to have legal significance, and only its content, that is, information, has legal significance. The content of personal information is information that can be identified or associated with an individual. Data that does not contain personal information does not have theoretical difficulties in the digital society. Whether it is a business or an individual, it can be regarded as property rights (virtual property) deal with. Under the current social background, the practical problem between data utilization and personal information protection faced by enterprises is how to coordinate the contradiction between the utilization and protection of personal information (such as personal information, privacy security, etc.).
Both the Civil Code and the Personal Information Protection Law use two core words for the identification rules of personal information: “identifiable” and “electronic”, in which the “identifiable” feature of personal information seems to be more emphasized , but the “electronic” feature of personal information is the “identifiable” sign of personal information in the digital society. Because electronicization means that personal information can be machine-readable and processed through algorithms, it is more in line with the essential requirements of the digital society. Personal information that is currently discussed in law, and personal information that data companies care about in practice should refer specifically to electronic personal information, that is, the electronic representation that can be calculated, calculated, and automatically processed in cyberspace. form information. If we want to more accurately define the characteristics of personal information in the digital society, it should be “electronically identifiable (machine-readable and algorithmically processed) information”. In other words, “algorithmic identification” is the essence of personal information in the digital society. feature. Because, “identifiability” alone cannot distinguish the characteristics of personal information from the specific personality interests (name, portrait, reputation, etc.) that have the same information attributes. After all, all specific personality interests are also identifiable in external social manifestations. , but the way to identify specific personality interests in offline society is “natural identification”, that is, through physical methods such as photos, text, language, etc., rather than using algorithms. It can be seen that the algorithm identification of personal information determines that personal information in the digital society is electronic information that can identify individuals after data processing (algorithmic technology), and is “information that individuals should obtain protection during the process of information processing.”
(2) Personal information as the subject of rights
The object is the target of rights and obligations, the external representation of the object (interest) on which rights are established, or the carrier of rights and obligations. The object is the performance behavior, and the object of personality rights is the specific personality interests. The right to personal information is based on personal information, and the legal attributes of personal information as the object of rights determine the nature, characteristics and content of personal information rights and interests, and then determine the attribution of interests above personal information.
First, personal information is the natural attribute of the object of rights. The natural attributes of personal information determine the legal attributes of personal information as an object of rights. Personal information is meaningful content that can identify a specific individual. Personal information is significantly different from objects that are objects of real rights and smart products that are objects of intellectual property rights. Compared with things, personal information is incorporeal and will not form a monopoly in its natural form. But incorporeality is not the essential difference between personal information and things in terms of natural attributes, because things themselves also include physical things and incorporeal things. The essential difference between information and things is that personal information can be copied indefinitely, and can be used by multiple subjects in different scenarios at the same time, while things that are objects of real rights can only be occupied and used exclusively by the subject of rights. In addition, compared with smart products, personal information, although both are intangible and reproducible, both contain personal value and property value. However, personal information is not creative and can be physically controlled, which determines that personal information cannot be protected by intellectual property rules.
Second, the legal attributes of personal information as an object of rights. On the one hand, personal information in the digital society must have the attribute of personality interests. The personal information discussed in cyberspace must be able to identify individuals, be able to represent the way and state of existence of the information subject, and be closely related to people. These information are the evaluation parameters of the digital society. Based on this, the digital portrait of the individual can be drawn. Therefore, personal information has the attribute of personality interests. The personality attributes of personal information in the digital society are mainly manifested in three aspects: first, personal information is related to both the evaluation of individuals in the traditional offline society and the evaluation of individuals in the digital society; The freedom of behavior in the offline society is also related to the freedom of behavior of individuals in the digital society. Third, personal information in the digital society can be processed and processed through algorithms, and even a portrait of the information subject can be formed.
On the other hand, personal information in the digital society must have the attribute of property interests. In the digital society, network communication technology makes personal information in cyberspace naturally circulated. The network platform collects personal information, forms large-scale and structured big data, and processes it into data products through algorithmic technology. In this sense, personal information in cyberspace has economic utility and is scarce. As a production factor in the data market, personal information plays an increasingly important role in the digital society and becomes an important digital asset for Internet companies (such as Huawei, Tencent, ByteDance, etc.) The competition for personal information among enterprises is also becoming more and more fierce. It can be said that property value is the recessive gene of personal information, and digital technology enables this recessive gene to be highlighted and externalized. It can be seen that the legal attribute of personal information as the object of rights mainly reflects the personality interests of individuals in the digital society, but the personality interests naturally contain the genes of property interests.
(3) The right attribute of personal information right
Since personal information in the digital society is a personal interest with inherent property value, what attributes should the right to use as an object have? Just as the rights derived from things are real rights, the rights derived from personal information should be the personal information rights. The personality interest attribute of personal information containing property value determines that the right to personal information must be a personality right containing property value.
First, the right attribute of personal information right is characterized by personality rights. Personal information in the digital society is the embodiment of the interests of human beings as a social existence, and it is a specific personality interest. This personality attribute determines that the rights derived from it must be personality rights. The “Civil Code” places personal information in the “Personality Rights”, which is in line with the personality rights characteristics of personal information. However, it should be pointed out that although the right to personal information belongs to personality rights in legal nature, it is still different from the personality rights and interests in traditional offline society. In the digital society, because the legal attributes of personal information are different from the traditional offline society, people’s understanding of the connotation and extension of personal information in the digital society is biased, and they lack the awareness of protection and the ability to discriminate personal information. Although some cases in practice are caused by the infringement of personal information, the object of the infringement is not necessarily the personal information in the digital society. The reason is that the personal information protected in the digital society is information that has both “identifiable” and “algorithmic” characteristics. Only such information can demonstrate the original intention of the legal system for personal information protection. However, personal information in traditional offline society only has the characteristics of “identifiable”, and the lack of “algorithmization” makes it impossible to become the object of personal information protection. This limitation is not a limitation on personality rights, but is determined by the digital characteristics of personal information protection. Therefore, the object of the personal information protection system should be limited to the electronic personal information processed by the information processor with algorithm technology. The EU General Data Protection Regulation also clarifies that personal information processed in personal or family life does not fall under the protection of the law. Taking a step back, even in an offline society, the “identifiability” of personal information is not a sufficient condition for obtaining the protection of personality rights. Personal information in offline society is not an independent personality rights and interests. What can be protected by law is information that has been measured and judged by interests. It either carries typical personality rights and interests, such as name, portrait, privacy, reputation, etc., or conforms to the protection of general personality rights. constituent elements. The legal function of “identifiable” in the protection of offline personality rights is only to associate information with individuals. Its significance lies in that, first, it makes it possible to generate “personality”, because the information of individuals cannot be identified, and it will not be related to others. The freedom and dignity of human rights are at stake; the second is the possibility of attribution of “rights”. Only by distinguishing the information of specific individuals can the subject of rights protected by law be determined. Therefore, in the face of personal information disputes, it is not necessary to use the personal information protection system as the basis for the right to request. Personal information protection should be differentiated between specific scenarios, digital society and offline society, and different rights and interests relief paths should be adopted online and offline. .
In offline scenarios, such as “Deng Moumou v. Beijing SF Express Co., Ltd. Privacy Dispute Case”, the court determined that Deng Moumou’s mailing address and part-time work abroad are closely related to the individual and often reflect part of the individual’s characteristics Therefore, it has the meaning of identification, is related to the personal interests, and belongs to personal information. But at the same time, the above information of Deng Moumou is information that he does not want to be known by outsiders and will affect his existing work, and has a certain degree of privacy. It is not inappropriate for Deng Moumou to claim his rights on the grounds of privacy disputes. In “Sun Moumou v. China United Network Communications Co., Ltd. Shanghai Branch for Infringement of Privacy Rights”, the court held that the plaintiff Sun Moumou provided personal information such as personal name, address, telephone number, ID number, etc., and the defendant did not With the consent of the plaintiff, providing the above information to a third-party subject with independent legal personality, the defendant’s behavior constitutes a violation of the plaintiff’s right to privacy. Although the Personal Information Protection Law had not been promulgated at the time of the judgment of the two cases, it can be seen from the focus of the disputes in the two cases that the personal information disputes in the offline society are still the boundary conflict between the traditional personality interests and the freedom of behavior of the obligor. If the offline society adopts the personal information relief model of the digital society, because the “Personal Information Protection Law” is essentially a right-correction law, and information processors have heavier obligations, it will lead to the escape of rights relief to personal information protection, and it is likely to disintegrate traditional personality. rights protection system. Such as the “WeChat Reading Case” and “Ling Moumou v. Douyin Case” are more typical personal information protection cases. In the “WeChat Reading Case”, the defendant disclosed the plaintiff’s reading information on the Internet, and in the “Ling Moumou v. Douyin case”, the defendant recommended friend relationship information to the plaintiff in the software, all of which were fixed personal information generated by the platform after automatic processing by algorithms. , such information relies on “electronic” carriers, is machine-readable, and can be processed automatically, which is completely different from the type of information in traditional offline societies. The credibility of specific information disclosure in the offline society is much lower than that of personal information in the digital society, because network information is calculated by algorithms, has strong credibility, and spreads quickly and has a wide range of influence. Therefore, the infringement of personal information in the digital society is obviously different from the infringement of personality rights in the traditional offline society, and the two should be distinguished.
Second, the right attribute of the right to personal information is characterized as a personality right that contains property value. The personality rights of personal information rights are not fundamentally different from the specific personality rights in traditional offline society. The difference is that personal information right naturally contains property value, while personality rights in traditional offline society do not necessarily contain property value, or even cannot contain property value. This point is reflected in the provisions of Article 992 of the “Civil Code”, that is, “personality rights shall not be abandoned, transferred or inherited”. According to the basic principles of civil law, personality rights and property rights are incommensurable, personality rights cannot be transferred, inherited or abandoned, and only property rights can be transferred and traded. However, in the current social practice, data companies that use personal information have released the property value in personal information, which has brought interpretation difficulties in theory: social practice cannot violate basic legal principles, and basic legal principles cannot violate the logic of social practice . This requires theoretically proving that personality rights are the general contract through which procedural design is used to realize the externalization of property in law. In short, how to design a system that converts the property value contained in the personal rights and interests of personal information into external and independent property rights and interests, and how to find the theoretical basis for it, will be the key to solving legal issues related to personal information.
How property rights contained in personal information are allocated
(1) Paths and deficiencies of the propertyization of traditional offline social personality rights
There are two theoretical explanation paths for the propertyization of personality rights in traditional offline society: one is the path of “The Right of Publicity” in American law. American law mainly refers to the right of the parties to authorize others to use their personal rights such as their portraits through contracts and other means from a positive perspective, and it is usually understood as property rights. This path is indeed in line with social practice and basic legal principles, because the legal rights that can be traded and transferred can only be property rights, not personal rights. However, the difficulty in defining the right of publicity is that, despite its practical rationality, it cannot clearly prove how the rights of personality are legally transformed into rights and interests of property. Specifically, the specific conversion procedures and related theoretical support have not been fully elucidated. At least from the perspective of the basic theory of civil law, it is impossible for two incommensurable rights to be converted into each other. It is for this reason that some scholars in American law are now starting to study and reflect on the traditional doctrine of the right to publicity.
The second is the protection path of personality rights in German law. German law mainly starts from a negative perspective and realizes the relief of the property value of personality rights and interests from the path of responsibility, that is, for the defendant who uses his personality rights and interests without the permission of the plaintiff, the court not only orders him to bear the tort liability for infringing on the personality rights of others, Moreover, the property value damage suffered by the plaintiff was also compensated by ordering the defendant to bear material compensation for mental damage. The advantage of this interpretation path is that it follows the existing legal logic, there is no theoretical obstacle, and the property filling does not surpass the existing civil law theories, and the existing legal theories are also self-consistent. The disadvantage is that it not only fails to recognize the property value contained in personality rights and interests from a positive perspective, but also lacks the institutional assumption of legalizing the property value contained in personality rights and interests.
The setting of any system is a technology of balancing interests, and the core value contained in the system affects the direction and development of rule design. Although the above two paths are attempts at the propertyization of personality rights in the traditional offline society, they all have limitations. Either they cannot complete the proof of the internal theory and go against the logic of the system, or they cannot achieve theoretical breakthroughs and fall into self-enclosure and restrictions. . Both of the existing two paths are difficult to respond to the propertyization of personal information rights and interests in the digital society. For example, the protection path of personality rights in German law can only explain the negative protection of personality interests, with limited explanatory power, and cannot realize the positive value of the inherent property value of personality rights. Utilize and share (or transfer); US law, although it results in the propertyization of personality rights, is not fully justified in theory. More importantly, the two paths are only aimed at the propertyization of one-time personality rights and interests, and it is difficult to adapt to the realistic requirements that data (including personal information) in the digital society are often used multiple times by multiple subjects. Because personal information can be shared by multiple subjects in cyberspace, the externalization of property rights and interests contained in personal information is universal and continuous, rather than a simple transaction (contract) or tort. It is necessary to think about an externalization path of property rights and interests contained in personal information that is universal and meets the essential requirements of the digital society.
(2) Institutional Defects in the Externalization of Personal Information Property Rights and Interests: Evaluation of Consent Rules
Due to the incommensurability of personality interests and property interests in nature, any attempt to prove that personality interests are directly transformed into property interests is a violation of the basic principles of law. The propertyization of traditional personality interests such as names, portraits, voices, etc., is more of a legal illusion or theoretical misuse. Personality interests and personal logo property rights should be distinguished. The property value of personal logos is not generated by personal interests such as name, portrait, voice, etc., but rather from other factors outside these personal interests, such as acting, art and literary works. The celebrity effect brought about by etc., the property value is only attached to the personal interests such as name and portrait. The same is true of personal information. Although personal information has a property gene, the gene is recessive, and the generation of its property value is mostly based on the externalization of the information processor’s labor creation, rather than directly generated by the property gene in personal information. Therefore, the property value of personal information is not generated from the personal interests of personal information, and its ownership is not necessarily attributed to individuals only. However, because property interests and personal interests in personal information cannot be physically separated, at least in terms of external performance, information processors still need to obtain the consent of the information subject for the production and use of the property value of personal information. its personal interests. Consent is also the embodiment of freedom of will in the protection of personal information, which not only meets the most fundamental moral requirements of human beings, but also conforms to the essential attributes of private law. The core of private law is freedom of will and personal dignity. “Self-determination is the essence and core of human subject value. “.
Although the consent rules of the current digital society ostensibly meet the free will requirements of individuals, in practice, individual consent is mostly a last resort. Moreover, the design of consent rules is not entirely beneficial to data companies. Not only does the design of consent content take a lot of work, but more importantly, consent rules also bring many pitfalls to companies, because any unauthorized use of information without personal consent. There may be violations or even illegal consequences. How to choose the legal theory of the externalization of the intrinsic property value of personal information, and how to design a personal information utilization system that fits the digital society to replace the current consent rules should be the main points of research on the utilization and protection of personal information.
(3) New ideas for the distribution of personal information property rights and interests: the idea of benefit sharing
Since the rights and interests of personal information are personality rights and interests that contain property value, then the personality rights and interests should be exclusive to and enjoyed by individuals, which is logical in the theory of civil law. The most difficult to explain in theory and practice, and the most difficult to deal with in system design, is actually how to distribute the property rights and interests contained in personal information and how to realize it in the system. The characteristics of personal information in the digital society determine that although the personal interests of personal information belong to individuals, the personal information is physically controlled by the information processor and generates property value. The difficulty in distributing the interests of personal information property rights and interests between information subjects and information processors lies in the mode of owning, controlling and sharing the property value contained in personal information. The system design of the ownership and distribution of the intrinsic property value of personal information is not a unique problem of a country, but a problem faced by all countries, and even the most difficult practical and theoretical problems faced by the entire digital society.
At present, the theories on the ownership of personal information property interests mainly include the theories of common ownership and trust. But no matter which theory, the goal is to achieve a balance of interests between data companies and individuals, that is, on the one hand, data companies should be encouraged to continue to promote the development of the digital economy, and on the other hand, personal information and property interests should not be deprived. Discussing the attribution of property rights and interests in personal information, in the ultimate sense, is to enable individuals to share the dividends brought by the commercial use of personal information, otherwise it is worthless to discuss the attribution of property rights and interests. However, practice has revealed that the direct access of individuals to information property interests is not in line with the status quo of social life, at least at present. In addition to clear contractual arrangements between individuals and data companies, requiring data companies and individuals to price personal information through consent rules is not in line with the operational logic of the digital society. Although it may be possible to determine the subject using a piece of personal information or what kind of personal information a data product contains, etc., it may be possible through technical means, but it is not easy to set a price for a piece of information, because the same piece of information is contained in different data products. The function and value are not the same, and it is even more difficult to price the combination and combination of different information. The point-to-point bargaining model under the traditional civil law model is not suitable for the pricing of personal information. Therefore, the legal thinking in the digital society must be transformed to find a way of distributing the value of personal information property that meets the essential requirements of the digital society.
For the property value in personal information, it is not necessarily the real distribution of benefits that directly distributes profits to individuals. It is also an alternative distribution method to allow all information subjects to indirectly enjoy the dividends brought by the digital economy. Just as the land transfer fee that belongs to the whole people in our country may not be distributed and implemented to every citizen, it cannot be denied that the land transfer fee brings indirect benefits to each citizen. Because the national economic development and the construction of public facilities have benefited every citizen, each individual has achieved an improvement in individual welfare due to the sharing of the whole people. Similarly, it is not necessarily an acceptable distribution method to benefit the whole people through macro-control methods such as the collection of digital (personal information) taxes and the creation of digital funds. This benefit-sharing model may bring new enlightenment to the distribution of the intrinsic property value of personal information and the design of specific systems.
(4) System design for the distribution of personal information property rights and interests
Although the property rights and interests in personal information can be shared by information processors and individuals, the property rights and personal interests of personal information are physically inseparable. Therefore, personal information property rights and interests include personal rights and interests, which determines that data utilization cannot break through the bottom line of protecting personal information’s personal interests. In the specific system design, the following two points should be paid attention to:
First, information processors must have a legal and legitimate basis for processing personal information. The personal information right is essentially a personality right. Although it naturally contains property value, the processing of information without a legitimate reason constitutes an infringement of the personal information rights and interests of others in law. The legal and legitimate basis provides immunity from legal responsibility for information processing, and makes subsequent information processing, including data production, legitimate. The legal and legitimate basis of the system in the protection of personal information is mainly the rule of informed consent.
First, informed consent is not necessarily a concept in civil law. Threats to personal information mainly come from large-scale information processing, and the empowering value of the right to personal information is mainly reflected in the maintenance of individual dignity and the dignity of groups and society as a whole. The collective value attribute of dignity requires that the protection of personal information should be carried out from the perspective of the community. The constitutional connotation of the right to personal information also explains why my country’s Personal Information Protection Law stipulates that “this law shall be formulated in accordance with the Constitution”. It’s just that at present, my country’s Constitution does not clearly stipulate data and personal information. The normative basis for the personal information protection system can be obtained by interpreting Article 38 of the Constitution on “personal dignity”. Under the framework of the Constitution, informed consent expresses For information self-determination, that is, the basic right of each subject to self-determination of personal information. The significance of determining the informed consent in the constitution is that it can play a role in constructing an objective order for the civil law and the personal information protection law as departmental laws. Therefore, the informed consent rules can break through the existing institutional framework and create norms that conform to the characteristics of personal information protection. model.
Second, even in civil law, there is a lot of controversy over the nature of informed consent in academic circles, which should still be understood in the context of specific civil legal relations, and its nature should not be authorization but mainly a condition of illegal obstruction. (1) Authorization is an act of disposition, which can directly lead to the creation, modification and elimination of rights, so the object must be disposable. However, the personal rights and interests of personal information rights are closely related to personal dignity and personal freedom, and are not severable. Therefore, informed consent cannot produce the legal effect of authorization. (2) Personal information property rights and interests in the digital society are mainly controlled by information processors. Individuals do not enjoy the actual control of personal information property rights and interests. Only when personal information infringement occurs, can the corresponding personal information be obtained through tort liability rules Property rights relief. Therefore, even if the individual agrees, it will not have the legal effect of authorization. Moreover, if an individual has the right to control the rights and interests of information property, then he or she has a greater right to speak to the market circulation of personal information, which is easy to hinder the market circulation of information and is not conducive to the healthy development of the digital economy. (3) “Consent to block but illegal” is not a special case in the field of personal information protection, and there are already such rules in other fields. For example, in the medical field, a doctor can be exempted from liability if the doctor has fulfilled his duty of explanation and the patient agrees. However, in practice, the agreement rules are somewhat formalistic and have not had the desired effect. This requires us to further explore the system design that truly enables information processors to have a legitimate and legal basis and protect individuals. (4) Although consent enables the information processor to obtain the dual legitimacy of restricting the personal rights and interests of personal information and maintaining the rights and interests of personal information property, it is only a necessary condition for preventing illegality, but not a sufficient condition. After obtaining consent, information processors cannot abuse their rights, nor can they arbitrarily put individuals at risk, otherwise they still need to bear legal responsibility. Therefore, consent is not a reason for exemption in traditional tort law, but only a condition for illegality.
Second, information processors have the obligation to protect personal information. The legal basis for personal information processing is only the first barrier to personal information protection, and it cannot guarantee that personal information rights and interests will not be infringed. There are two main legal paths for personal information protection, namely the individual-centered empowerment protection path and the information processor-centered behavioral regulation (imposition of obligations) path. In the digital society, the way to reasonably protect personal information should be to adopt both the path of empowerment protection and the path of behavior regulation, which not only defines the information rights that individuals have, but also imposes the obligation of information processors to protect personal information, that is, around the use of personal information. Establish the relationship of rights and obligations, and form a link with the rights allocation rules of the information subject, otherwise it will be difficult to make the protection of personal information effective. First of all, the information processor is the actual controller of personal information, has a comprehensive grasp of the security status of personal information, and can fully and reasonably evaluate the risk of personal information. Therefore, the information processor is more capable of controlling the risk of personal information infringement Ability to effectively respond when information breaches occur. Secondly, information processors store personal information on online platforms, and use and share personal information for the purpose of obtaining economic benefits. Their use increases the risk of personal information being infringed to a certain extent, so they are obliged to ensure personal information. Safety.最后，信息处理者是个人信息处理行为的实际受益者，其在获取个人信息财产权益的同时，应承担起防止个人信息人格权益受到侵害的义务，并应积极履行该义务，降低个人信息遭受侵害的风险。
结语：数字社会诚信价值的实现何以可能
无论是生存于自然界的线下社会还是存在于赛博空间的数字社会，生活于其中且起着主导甚至主宰作用的还是自然人类。尽管在传统线下社会中早有去人类中心主义的呼声，但这种呼声并未占据主流。自然人类的一个主要缺陷便是诚信缺失，这也是产生各种社会制度，包括法律制度的重要促因。诸如频频出现的一房二卖或多卖、P2P爆雷、信托、保理、融资租赁金融欺诈等现象，都是诚信缺失的现实社会表现。正因为诚信难得，我国才将其作为社会主义核心价值观之一；正因为诚信宝贵，民商事领域才将诚实信用规定为基本原则。倘若当事人之间的意思表示皆为真实，那么民商法中就不会有因通谋虚伪、恶意串通等现象而导致的无效合同，也不会存在因欺诈、胁迫、显失公平等导致的可撤销合同，甚至信托等法律制度也不会产生；如果人必定践行合同约定，也不必规定民事担保、违约责任，亦无须建立复杂的票据与金融制度，甚至不需要对婚姻、继承、收养等制度做如此复杂的规定。
诚信是人类社会的底线要求，又是难以实现的理想追求。如果说传统线下社会的诸多制度尤其是民商事法律制度，主要目标之一是保障诚信、防范欺诈，但诚信价值仍然难以企及的话，那么数字社会的到来则为诚信的实现提供了物质基础（数据与信息）与技术保障（算法），即数字社会中人的诚信至少有了计量可能，从而有利于实现主观诚信向客观诚信的转化，这也是个人信息制度设计的初衷。人们在数字社会中的任何行为包括法律活动都会留下痕迹，每一次履约或违约以及每一个侵权行为等都会被记录，作为一个人的个人信息被机器读取，并通过算法处理计算出该人的诚信指数。一个人的诚信指数不仅可以用于银行贷款等传统征信领域，更可以应用到整个民商事活动中，甚至是其日常生活交往中。举例说明，如果一个人的信用记录极低，有约必违，那么当他向银行借贷时，要么银行会拒绝向其贷款，要么会让其贷款申请在设定充分担保（不但包括本金、利息，而且包括实现担保的成本）的前提下才能获批。又如在美国，各州均依据“梅根法”设立了性侵犯罪者个人信息公开网站，公司可通过该网站提供的个人信息服务，调查其拟雇佣员工的相关信息。再如打车平台依据顾客反馈形成的司机评价，某网络平台上消费者对特定电商、宾馆、旅游景点的评价等，通过这些信息既可判断个人的诚信程度，也可判断企业的诚信指数、服务质量等。正是在此意义上，我们才说数据、个人信息与算法的结合构成了数字社会中市场诚信、交往诚信的基础，在更大程度与更大范围上实现了诚信价值。
可见，数字社会中的人，其诚信不再仅仅表现为主观价值，而是可以作为一种可计量的客观价值予以呈现，个人信息成为了诚信的重要载体。诚信指数的高低，标志着一个人客观价值的高低，诚信构成了对数字社会中人之评价的核心要素。一个人无论在线下社会是否诚信，一旦进入数字社会，他就要努力成为诚信之人，否则就无人跟他进行交易，或者其交易成本会极其巨大。由此，作为传统线下社会理想追求的核心价值——诚信，便有可能在数字社会中逐渐成为现实。数字社会以个人信息为基本要素，以算法等为技术支撑，此两大特征确定了个人诚信的可计算性（诚信指数），从而在更大程度上克服了线下社会个人信用较难判定的实践难题。正是在此意义上，我们才说数据（含个人信息）具有双重价值，它不仅是数字经济中的物质性生产要素。更为重要的是，它还体现了社会伦理价值。从个人的角度看，个人信息彰显人的人格尊严和自由；从社会整体的角度看，个人信息是个人主观诚信的客观化呈现，利于实现人之诚信的可计量化。在数字社会中，个人信息计算至少使人们看到了实现人类诚信价值的一缕曙光，这或许是数字社会的真正价值所在。
原文刊载于《探索与争鸣》2022年第5期
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