Clarifying the relationship between personal data right and personal information right
do
person
simple
Medium
Zhou Sijia, lecturer, School of law, Hehai University, doctor of law
contents
1、 The content and subject of personal data right and personal information right are different
2、 Personal information right is property right, personal data right is personality right
3、 The right of personal data is the right of self-determination, while the right of personal information is not
Four, conclusion
Abstract
Personal data right is different from personal information right. In the network world, the personal data right protects the personal data of the data subject, while the personal information right protects the personal data obtained legally by the information subject and transformed into information. Personal information to information subject is because it can be regarded as personal information and has property meaning, so personal information right is property right, which is a typical civil right; while personal data to data subject is not because it has property meaning, but because it cannot be separated from data subject, so personal data right is not property right, but personality right. In the era of big data, the relationship between the information subject and the data subject is civil legal relationship. Without the consent of the data subject, the information subject shall not collect, process, use and transmit his personal data without permission. In short, data subjects have the right of self-determination for their personal data, while information subjects do not have the right of self-determination for their personal data.
Key word
Personal data right personal information right big data information
In the computer age, the way of human existence has changed a lot. A person's existence is not only manifested in its visible appearance, but also in the form of computer data in the network world. In this era of big data, personal data rights have become a hot topic in academic circles. However, when people discuss the right of personal data, they often use it indiscriminately with the right of personal information, which greatly restricts people's understanding of the right of personal data. Specifically, when there is no distinction between personal data right and personal information right, data and information are confused. In fact, not all data has information value, and not all information is data. At the same time, when there is no distinction between personal data right and personal information right, the personality right of data subject is confused with the property right of personal information right, so the nature of constitutional right and civil right of personal data right cannot be distinguished. Moreover, when there is no distinction between personal data right and personal information right, the right of self-determination of personal data right can easily be said to be the right of information self-determination, which leads to the problem that logic cannot be self-governing, and thus affects its judicial relief. Therefore, it is of great significance to clarify the relationship between the two concepts, both for theory and practice. Based on this, this paper analyzes the differences between personal data right and personal information right from three aspects of logical relationship, right type and data self-determination right, in order to clarify the relationship between the two concepts.
1、 The content and subject of personal data right and personal information right are different
Personal data right and personal information right, although they refer to a high degree of coincidence, can not be used to refer to the same concept. The differences between the two concepts are mainly reflected in content and subject.
（1） On content
In the physical world, a person is recognized by outsiders because of his own external characteristics. When we talk about someone, we often talk about someone's characteristics. When we talk about these characteristics, we often talk about someone. These recognizable features can be divided into natural features and social features, the former is gender, age, height, constellation, blood type, nationality, etc.; the latter is name, belief, concept, party, occupation, etc. According to their relationship with the alleged subject, natural and social features can be divided into exclusive and non exclusive features, the former being name, gene, fingerprint, etc., and the latter being age, height, belief, etc. Of course, the distinction between the special attribute features and the non special attribute features is relative. When a series of non special attribute features are combined together and their relationship with a specific subject reaches a one-to-one correspondence degree, the combination of these non special attribute features has the exclusive nature.
In the physical world, personal characteristics and specific subjects can not be separated for a moment. A person exists with his personal characteristics, and the existence of personal characteristics is meaningful only when it is attached to a specific subject. However, since the invention of characters and other symbols, personal characteristics are not limited to people's words, but can be converted into characters or other symbols, and fixed through the text. After the emergence of computers, personal characteristics can be transformed into data forms, and widely exist in the network world. Whether it is text, symbol, or data, when personal characteristics exist independently in some form, they are separated from the specific individuals in appearance, and the form that carries these personal characteristics is personal data. Personal data and personal characteristics are the relationship between form and content, personal data is the material carrier of personal characteristics, and personal characteristics are the content reflected by personal data. Since personal data can be expressed as personal data, as well as words or other symbols, personal data is only one of all forms of personal data.
Personal data is different from personal information. In the network world, information is the content reflected by data, and data is the manifestation of information. Data is a symbol invented by human beings, which is not different from people's understanding, so it has strong objectivity; while information is the content reflected by symbols, which emphasizes people's understanding of data, so it has certain subjectivity. The same data is always data for different subjects, but different subjects have different understandings about whether the same data is information or not. Some personal data have information value to one subject, but not necessarily information significance to another. When we say that a certain data is a kind of information, it often includes the subjective and positive evaluation of the speaker on the data, which is a value judgment on the usefulness of the data. The reason why a certain data is only data is that it is only a description of a certain objective existence symbol; and the reason why a certain data is information is that it has the function of identification and communication in interpersonal communication. Therefore, the relationship between data and information is that information is processed data, or information is the result of data processing.
In the Internet era, many individual and sporadic personal data do not become information, or the value of information is very low. But after processing, the information value of personal data will increase greatly. There are two ways to increase information value: one is to combine multiple data of a specific subject into a whole; the other is to combine personal data of multiple subjects into a whole. The value of the information made up of the former lies in identifying a certain subject, while the value of the information made up of the latter lies in judging a certain group. In interpersonal communication, personal information means that personal data can provide recognizable content for interpersonal communication after processing. Its significance lies in eliminating the uncertainty of interpersonal communication.
From the perspective of information recognition, personal information, as a recognition signal reflecting personal characteristics, is also a part of personal data. However, some personal characteristics have recognition significance, and some have not reached the recognition level, especially those isolated and non exclusive personal characteristics. Therefore, as the carrier of personal characteristics, the relationship between personal data and personal information is also a species relationship in logic. In particular, personal information belongs to personal data, but personal data are not all personal information; personal data includes personal information, but personal information is only a part of personal data. Therefore, like personal data, personal information belongs to personal data and is a sub concept under the concept of personal data.
Since both personal information and personal data belong to personal data, what is the logical relationship between personal information and personal data within the scope of personal data? According to the previous analysis, personal data and personal information can also be regarded as the relationship between form and content. Personal data "can" but not "necessarily" is the form of personal information, and personal information "can" but not "necessarily" is the content reflected by personal data. "Can" rather than "necessarily" indicates that the two are logically cross related. Some personal data are personal information, some personal data are not personal information, some personal information is in the form of personal data, and some personal information is not in the form of personal data. Of course, in the Internet world, personal data and personal information overlap greatly. Personal data is generally personal information, while personal information is generally personal data. However, in the rigorous logical thinking, the coincidence of personal data and personal information can only be expressed as "general" rather than "all", because in theory, there is always a gap of "non coincidence" between personal data and personal information within the scope of personal data, and the logical relationship between the three can be expressed as follows:
Figure 1 Relationship between personal data, personal data and personal information
The logical relationship among the three concepts of personal data, personal data and personal information shows that personal data right, personal data right and personal information right cannot be used as the same legal concept. The scope of protection of personal data right is smaller than that of personal data right. Taking personal data right as the right type, personal data right is naturally under protection. However, in this way, it can not highlight the fact that personal data is vulnerable to infringement in the Internet era. It should be noted that any legal claim for rights is due to the fact that it is vulnerable to violations. When such violations become intolerable, rights become legal claims. The reason why people do not claim the right of personal data, but only recognize the right of personal data is that when other personal data that is not personal data is infringed, they can get relief according to the traditional legal protection, and personal data exists in the network world, which is easy to be processed, calculated, tracked and spread. Therefore, it is more difficult for individuals to control the data of their personal characteristics than the characters or other symbols of their personal characteristics. Therefore, we can understand that in the era of network big data, the right of personal data can transcend the right of personal data and become a new legal concept accepted by people.
Of course, if in the context of the Internet, the right of personal data is not covered by the right of personal data, not because of logical obstacles, but because of practical needs, then it is a logical problem that the right of personal data cannot be referred to by the right of personal information. Because if the right of personal data refers to the right of personal information, personal data with information meaning can be protected, but personal data without information meaning cannot be included. Similarly, if the right of personal information refers to the right of personal data, it means that information expressed as personal data can be protected, while other information not expressed as personal data cannot be included. Obviously, the right to personal data and the right to personal information, because of the two