个人信息权的宪法(学)证成——基于对区分保护论和支配权论的反思

《个人信息保护法》最终纳入“根据宪法”条款,表征着个人信息保护法律体系在底层逻辑上的更动。民法学上权利与利益的区分保护原理,难以适用于整个合宪性法秩序。应将个人信息权确立为宪法位阶的基本权利,并以基本权利作为针对国家的主观防御权和辐射一切法领域的客观价值秩序的原理,协调个人信息保护的私法机制和公法机制。通过对人权条款笼罩下的通信权和人格尊严条款的解释,可以在学理上证立“基本权利束”性质的个人信息权。但其具体保护则应分别归入不同基本权利条款,作出区分化、差异化的多层次构造。个人信息保护的支配权思维有其局限,告知同意模式的式微是重要表现。应将个人信息权的规范目标调整为人格的自由发展,指向免于他人的人格干预。从支配权到人格发展权的思维转换,有助于规制对已收集信息的不当利用、破除“信息茧房”、缓和个人信息保护与利用之间的紧张,以及在“个人—平台—国家”的三方关系中有效保护个人的自决,同时为数据产业保留发展空间。

Const it ut ional Justificatio n of the Right to Personal Information-Based on the Reflections on the Differential Protection Theory and the Dominance Theory

The private law understanding of the protection of personal information played a fundamental role in the development of the personal information protection system in China. In legislative debates over the Personal Information Protection Law, whether to add the expression "in accordance with the Constitution" in the law was a very controversial issue. This expression was added to the law in its third draft, signifying the change of the underlying logic of the personal information legal protection system. The Personal Information Law is a basic law in the field of personal information protection, rather than a branch of civil law. Because of the high degree of asymmetry of the relationship between the individual and the information processor, the high frequency of information transaction, and the spillover of processing risks, personal information processing in modern society has gone beyond the traditional private law relationship between equal subjects. Therefore, the theoretical distinction between rights and interests in civil law cannot be applied to the constitutional protection of personal information. This paper suggests that the right to personal information be established as a fundamental right, and as both a subjective right and an objective value order above the whole legal system and used to coordinate the private law mechanism and public law mechanism for the protection of personal information. The right to personal information is in nature a bundle of rights, which can be justified by interpreting the human rights clauses on the freedom of personal communication and human dignity. Firstly, the freedom and privacy of correspondence is a constitutional basis of the protection of personal information. Secondly, the right to personal information can be theoretically incorporated into the scope of protection of human rights clauses in the Constitution. But considering its generality, this right should be interpreted in conjunction with other concrete rights to make it more operable. Thirdly, the right of human dignity provided for in Article 38 of the Constitution is also a constitutional basis of the protection of personal information. A person should not be spied upon, mentally oppressed, manipulated, discriminated against, or exploited in the processing of his/her personal information. Therefore, a differentiated multi-level structure is necessary for the protection of personal information. The dominance theory on the protection of personal information has limitations, as is indicated by the decline of the notice-and-consent mode. In this sense, the goal of the protection of the right to personal information should be adjusted as ensuring the free development of human dignity without intervention by others. The switch from the dominance theory to the theory of development of human dignity is conducive to regulating the use of collected information, breaking the information cocoon, easing the tension between the protection and the appropriate use of personal information, and effectively guaranteeing the self-determination of the individual within the individual-platform-state relationship, while preserving enough space for the development of the data industry.