Legislative protection of network privacy right

1. The industry self-discipline model represented by the United States. At the end of 1996, the U.S. government issued the article "Global E-commerce Policy Framework", in which the viewpoint of personal privacy protection is that only when the interests brought by personal privacy and information flow are balanced can business activities on the global information infrastructure flourish. "The government supports private enterprises to formulate meaningful and simple privacy self-discipline mechanisms. For problems that cannot be solved by the self-discipline mechanism, the government will cooperate with the industry to discuss solutions together. " This paper shows that the American government mainly adopts the attitude of industry self-discipline and reducing legal restrictions in the protection of privacy in Internet business activities. The reason why the United States stipulates this is to encourage and promote the development of the Internet industry and avoid bringing too much pressure to Internet service providers.

2. Software protection mode. This is mainly a mode for Internet consumers to choose and control themselves through technical means. This model puts the hope of protecting consumers' privacy in their own hands, and realizes self-protection of personal privacy data of network users through some privacy protection software.

3. The legislative regulation model represented by the European Union. In this mode, the basic principles, specific legal provisions and systems of network privacy protection are established by the state through legislation, and corresponding judicial or administrative relief measures are established on this basis. For example, the Directive on Personal Data Protection adopted by the EU in June 1995 requires EU countries to adjust and formulate their own personal data protection laws according to this directive.

The above three protection modes have their own advantages and disadvantages. The model of industry self-discipline shows that the privacy concept of relevant countries, such as the United States, is based on freedom, which is conducive to promoting the development of the industry, but it is easy to infringe on online privacy when conflicts of interest occur. However, the software protection mode depends on the development of related technologies, and its security and credibility need to be investigated. Legislative regulation is easier to protect the privacy of network users, but on the other hand, it also increases the legal obligations of network service providers, which may hurt their enthusiasm for network services and thus hinder the development of the whole industry. Therefore, scholars believe that we can adopt the protection mode of combining the three: legislation and supervision as the leading factor, industry self-discipline and technology as the supplement. Judging from the current legislation of privacy protection in China, privacy has not become an independent personality right in our legal system. Protection of Privacy in China Law

Protection has not formed a complete system, and its basis is only the basic principles of protecting citizens' personal rights established by the Constitution and individual provisions stipulated by the general principles of civil law. The Supreme People's Court 1988 issued the Opinions on Implementing the General Principles of the Civil Law of People's Republic of China (PRC) (for Trial Implementation), article 140 and 1993 issued the Answers to Several Questions on the Trial of Honorary Cases, which made up for the lack of privacy directly stipulated in the General Principles of the Civil Law to some extent. However, their Interpretation on Several Issues of Determining Liability promulgated in 200 1 the Supreme People's Court is a legislative progress, but it is still a pity that the status of privacy as an independent civil right has not been legally clarified. Regarding the legal protection of China's network privacy, Article 1997 18 of the Implementation Measures for the Interim Provisions on the Administration of International Networking of Computer Information Networks, which was approved by the the State Council Leading Group for Informatization on February 8, stipulates: "No malicious information shall be distributed on the network, and no information shall be sent in the name of others to infringe on the privacy of others." 1997 65438+On February 30, 2007, the Ministry of Public Security promulgated and implemented the Administrative Measures for the Security Protection of Computer Information Network International Networking, in which Article 7 stipulates: "Users' freedom and privacy of communication are protected by law. No unit or individual may violate the law and use the Internet to infringe on users' freedom of communication and communication secrets. " Article 12 of the Measures for the Administration of Internet Bulletin Board Services adopted at the 4th ministerial meeting of the Ministry of Information Industry on June 5th+10/October 8th, 2000 stipulates: "Bulletin Board service providers shall keep the personal information of Internet users confidential, and shall not disclose it to others without the consent of Internet users, unless otherwise stipulated by law." It can be seen that at this stage, there is no law on the relative right of network privacy in China, but it is only involved in some departmental regulations. Therefore, at present, the legal protection of network privacy in China is basically in a state of no legal basis.

Academics' suggestions on the perfection of China's online privacy legislation;

1, adopting comprehensive mode to formulate some industry standards.

Judging from the legislative trend of network privacy, there are two main modes: legislative mode and industry self-discipline mode. The legislative model can better protect citizens' right to network privacy, but the simple legislative model may also restrict the development of network economy. China's network economy is still in the primary stage and immature. At the same time, considering China's rule of law system and consistent legal tradition, we should adopt a comprehensive model and adopt the advantages of both models. Some industry standards can be formulated by industry self-regulatory organizations first.

2. Formulate special laws to protect network privacy.

As an independent personality right of citizens, the right to privacy is clearly stipulated by law. For various reasons, China's legislation has always neglected the protection of citizens' privacy. The Constitution only provides for the protection of citizens' freedom of communication and privacy. The General Principles of Civil Law also does not protect the right to privacy as an independent personality right. In judicial practice, cases of infringement of privacy rights are also cases of infringement of reputation rights, and citizens cannot sue on the grounds that their privacy rights have been infringed alone. We should strengthen the special legislation of network privacy. China's existing laws and regulations are formulated by various ministries and commissions in the State Council, and the legal rank is low, which cannot effectively protect citizens' right to online privacy. In addition, most parts of the country also have local laws and regulations to protect network privacy, but we know that the network has no geographical restrictions, and many network infringement cases even cross borders. These local regulations can't protect citizens' online privacy at all. Therefore, with the rapid development of network technology, the network is more and more closely connected with people's lives, and there is an urgent need for a national special legislation for the protection of network privacy, so that the protection of network privacy can be followed by laws, and at the same time, violations of network privacy can be punished by the law and victims can get due compensation.

3. Improve relevant supporting laws and regulations to make network privacy protection feasible.

First of all, add relevant clauses to tort legal liability, and stipulate civil liability for infringing citizens' personal privacy. If the infringement on citizens' privacy is arbitrary or illegal, the victim has the right to demand to stop the infringement, make an apology, and demand compensation for losses, especially for the victim's mental damage. Secondly, it is suggested that the crime of "invasion of privacy" should be added to the criminal law of our country, so that serious violations of citizens' privacy can be punished by the criminal law to enhance its deterrence. Finally, administrative regulations should strengthen the protection of citizens' privacy by staff. In real life, due to work reasons, administrative organs can easily receive citizens' personal information, so it is particularly important to strengthen the awareness of administrative staff to protect citizens' privacy, and their violations of citizens' privacy should be severely punished.

4. Strengthen industry self-discipline and government management. Due to the virtual nature of network information, the rigid management of laws and regulations will inevitably affect the smooth development of the network. Therefore, in the development of e-commerce in the world, protecting network privacy and promoting industry self-discipline through government management have become the knowledge of many countries and regions. On the one hand, operators have absolute obligation to protect the right to privacy, which should include the obligation of information collectors to inform, legally collect, use according to law and prevent leakage. Business operators should seriously implement it, that is, once they violate it, they should bear the corresponding liability for compensation. In this way, the interests of network users are guaranteed from the system and a real relationship of mutual trust is established. On the other hand, it is necessary to clarify the role of the government and build a government that combines leading and service-oriented policies to promote market autonomy and industry self-discipline. As far as the nature and mode of government management are concerned, the management of economic life in socialist countries is not intervention, but as an internal force and internal leadership, rather than external intervention. Therefore, the government focuses on guiding, cultivating and standardizing China's network industry from the perspective of economic globalization, and realizes scientific, economic, interactive and operational management and legal self-discipline by managing the network. 20 13,165438+126 October, the UN Human Rights Council unanimously adopted a resolution to protect the right to online privacy. The resolution was initiated by Brazil and Germany, and it was put forward against the background that the United States was exposed to large-scale monitoring of countries.

The Ambassador of Brazil said that the resolution established for the first time that human rights also need to be protected on the Internet. The German ambassador asked: "In the world of digital technology, is human privacy still protected? Should technically feasible things be allowed? " Earlier, Germany and Brazil submitted a draft resolution against mass surveillance to the United Nations, demanding an end to mass surveillance and protecting people's privacy in communication. The draft calls on all UN Member States to pay attention to the damage caused by large-scale monitoring.

The draft resolution does not name any country, but it is widely believed that it is an angry response to the recent large-scale global surveillance by the United States.