Realistic Dilemma and Improvement of Sensitive Personal Information Processing Rules
DOI:
https://doi.org/10.54097/ehss.v14i.8806Keywords:
Sensitive Personal Information, Personal Information Protection Law, Legislative ModeAbstract
The Personal Information Protection Law has a special chapter to stipulate the special pro-cessing rules of sensitive personal information, which reflects the value orientation of strengthening the protection of sensitive personal information. However, due to the mode of permitting the processing of sensitive personal information in principle and restricting pro-cessing with exceptions, the protection of sensitive personal information is greatly weakened in fact. Through the comprehensive analysis of our country's specific specifications of pro-cessing mode of principled prohibition and exception prohibition and combined with compara-tive law experience, the processing of sensitive personal information should adopt the legis-lative mode of principled prohibition and exception permission, and further limit the processing of exceptional allowed circumstances.
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Article 28 (1) of the Personal Information Protection Law: "Sensitive personal information refers to personal information that, once leaked or illegally used, is likely to cause damage to the personal dignity of natural persons or harm to personal and property safety, including biometric information, religious beliefs, specific identities, medical and health information, financial accounts, whereabouts, and tracks, as well as personal information of minors under 14 years of age."
Wang Liming: The Basic Issues of Sensitive Personal Information Protection -- Based on the interpretation of the Civil Code and the Personal Information Protection Law, Contemporary Law, No. 1, 2022.
MCCULLAGH K. Data Sensitivity: Proposals for Resolving the Conundrum, Journal of International Commercial Law and Technology, 2007 (4) :190-202.
Rebecca Wong, Data Protection Online: Alternative Approaches to Sensitive Data? , 2 Journal of International Commercial Law and Technology 9, 10 (2007).
See Sophie Stalla-Bourdillon & Alison Knight," Anonymous Data v. Personal Data-False Debate: An EU Perspective on Anonymization Pseudonymization and Personal Data". Wisconsin International Law Journal, Vol. 34, Issue2,2016, p. 317.
Article 28 (2) of the Personal Information Protection Law: Personal information processors may not process sensitive personal information unless there are specific purposes and sufficient necessity and strict protection measures are taken.
Sun Qingbai: Special system logic and regulation Strategy for Sensitive Personal Information Protection, Journal of Administrative Law, 2022 (1).
Cheng Xiao: On the Personal Information Processing Rules in the Protection Law of Personal Information, Tsinghua Law, Vol. 15, No. 3, 2021.
Article 29 of the Personal Information Protection Law: An individual's separate consent shall be obtained for processing his or her sensitive personal information. Where any law or administrative regulation provides that written consent shall be obtained for processing sensitive personal information, such provision shall prevail.
Ding Xiaoqiang: The "Promotion" and "Suppression" of Consent Rules in Personal Data Protection -- A Study on Rule Allocation from the perspective of Ka-Mei Framework, Law Review, No. 4, 2020. Pages 131-133.
Cheng Xiao: On the Personal Information Processing Rules in the Protection Law of Personal Information, Tsinghua Law, Vol. 15, No. 3, 2021.
Article 9 of the Eu General Data Protection Regulation: "The processing of personal information revealing race, political opinion, religious or philosophical convictions or trade union membership, genetic information, biometric information for the purpose of clearly identifying a natural person, and information relating to health and the sex life or sexual orientation of natural persons shall be prohibited, except in the exceptional circumstances provided for in paragraph 2 of this article."
"Personal Data Protection Law" of Taiwan: "Personal data relating to medical history, medical treatment, genes, sex life, health examination and criminal history shall not be collected, processed or used. Except in any of the following cases :(1) It is expressly provided by law; (2) Within the scope necessary for public organs to perform statutory duties or non-public organs to perform statutory obligations, and there are appropriate safety maintenance measures before or after; (3) Personal data disclosed by the parties themselves or otherwise legally disclosed; (4) Public organs or academic research institutions are necessary for statistical or academic research for the purpose of medical treatment, hygiene or crime prevention, and the data cannot be processed by the provider or by the collector according to the disclosure method. (5) In order to assist public organs to perform statutory duties or non-public organs to perform statutory obligations within the necessary scope, and before or after the appropriate safety maintenance measures. (6) With the written consent of the parties. Except where such collection, processing or exploitation is beyond the limits necessary for a particular purpose or otherwise limited by law, and is not permitted by written consent of the party, or by consent contrary to its will."
Zhang Yong: Integrated Public-Private Protection of sensitive Personal Information, Oriental Law, 2022, No. 1.
He Zhicheng: Research on the Definition and Legal Protection of Sensitive Personal Information, Master's thesis of Southwest University of Political Science and Law.
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