Data Rights Law 3.0
The Legislative Prospect
Summary
With a view to the future, the branch of Chinese law that is most likely to lead the world is that related to the digital economy. At the same time, if China wants to be amongst the world’s leading digital economies, the basics to be understood and promoted most are higher quality, fairer and more sustainable institutional protection for data rights and subject-relevant interests, and the ability to offer systematic and accurate legal rules within the various digital disciplines.
Excerpt
Table Of Contents
- Cover
- Title
- Copyright
- About the book
- This eBook can be cited
- Institute Introduction
- Editor’s Profile
- Editorial Board
- Translation Committee
- Table of Contents
- List of Tables
- Editor's Foreword
- Introduction: What Kind of Data Rights Law Do We Need
- Chapter 1 Value Orientation of Data Rights Legislation
- Chapter 2 Core Topics of Data Rights Legislation
- Chapter 3 Difficulties in Data Rights Legislation
- Chapter 4 Institutional Innovations in Data Rights Legislation
- Chapter 5 Comparison of Data Rights Legislation Models
- Conclusion: Data Rights Law: Timeliness and Rebalance
- Postscript
- Appendix I Interpretations of Internet Information and Data- Related Clauses in the Civil Code
- Appendix II List of Foreign Laws and Regulations Concerning Data Protection
- Index
Tables
Table 2.Categories of Personal Information in Legal Provisions in China
Table 4.The Comparison between the Four Generations of Human Rights
Table 5.Developing Stages of Views on Public Interest in Western Countries
Table 6.Comparison of Data with Other Factors
Table 8.The Source of Constitution for Data Protection
Table 11.Main Terms Concerning Cross-border Data Flow in China
Table 12.Data Quality Evaluation Indicators
Table 13.“Other Organizations” as Non-Subject in Current Laws
Table 14.Main Types and Concrete Contents of Sensitive Personal Data in the EU←xvii | xviii→
Table 15.Sensitivity Level and Method of Data Classification
Table 16.Theories on the Motivation for Industry Self-Discipline
Table 17.Legislation on Privacy Protection in the United States
Table 18.EU Data Protection Legislation
Table 19.Legislation on Data Localization Worldwide
Table 20.Data Protection Legislation of India
Table 21.Special Requirements for Different Types of Personal Data
Table 22.Personal Information Protection Legislation of Japan
Table 23.Brief Introduction to the Japanese Data Rights Law System
Editor’s Foreword
Currently, a global pandemic intertwines with radical changes in the world, all unseen in a century, pushing for the transition from the old to the new world order. Just as the financial crisis of 2008 changed the world pattern, the current Covid-19 pandemic is accelerating changes in the world’s economic pattern, interest pattern, security pattern and governance pattern formed in the industrial era over the last century. The year of 2020 may be a turning point for mankind, moving from an industrial society to a digital one. Previous societal changes have always triggered innovations in the legal world, and such innovations have now advanced ahead of time because of the global spread of Covid-19 and the transformation to a digital era. This new era requires a renewed enlightenment and space to develop a new society. It is exactly against this background that block data, data rights law, and sovereignty blockchain book series, as the “digital civilization trilogy” have been developed. Through years of hard work, the research paradigm of data rights law has made a leap from concept to theory and, thereafter, to rules; and this transformation has enabled us to acquire a new understanding and make new assessments of the development of the rule of law in the digital age.
First, a global data legal system has not yet been formed. The digital age has witnessed the loss of security control, misalignment of laws, immoral behaviors, ethical disorder, privacy compromise, and other risks that have become increasingly complex. In the context of digitalization, networking, and intelligent development, the traditional understanding and regulation of the digital world by force of law, the rule of law, and legal principles have encountered theoretical dilemmas and practical shortcomings that are difficult to deal with. This situation is closely related to the high complexity and uncertainty in the digital world, together with the development of the rule of law in the digital age, which is more challenging. The existing institutional supply cannot meet the increasing demands for data rights. Moreover, the ←xix | xx→global data legal system is far from being formed; data supervision has been absent for a long time, and there remains a lacuna in related laws. At the same time, the scale of global digital economy is constantly expanding, and the digital economy in China is entering a golden period of rapid development. A critical period has arrived for the formulation of a groundbreaking basic law for the digital age.
Second, data legislation is still behind what development requires. The use of data has become an important source of wealth, and the protection of data rights has become an important symbol of a digital society. From an objective point of view, global data legislation generally lags behind the development of the digital economy, the transformation towards a digital era, and the progress of this new digital society; and this is reflected more vividly in today’s rapid technological development. For a long time, China has been a learner, an adaptor, and a follower of international data rules, showing limited ability to set agendas for the world in this regard. This does not match its role and status as a major country of the world stage. Therefore, it is necessary for us to carry out extensive and in-depth theoretical innovation and legislative exploration to expand the reserves of international data governance policies and the research of governance rules.
Third, data legislation is showing a clearer tendency toward decentralization. We are in an era when laws fall into various categories, and in every category new laws have been formulated or are being formulated, so the number of new laws is increasing. In fact, the world is moving toward an era of system integration, and the legal system is gradually transforming from classification to integration. In the digital age, we are faced with many complex problems, whose solution does not lie in specialized laws. Instead, the more complex the structural relationships are, the greater the need for a more systematic method to provide the solution. So far, the regulation of data protection is scattered in multiple branches of law, such as civil law, criminal law, economics law, and administrative law, which gives rise to issues such as legal repetition, fragmentation, inconsistency, and vacuum. The research of data rights law is accelerating the formation of a unique legal field, and the “fragmentation” of the data rights system ←xx | xxi→urgently requires legislative cohesion so as to achieve a systematic and codified legal expression.
Fourth, experience can be drawn from foreign data legislations. Only by taking an international perspective, establishing a global mindset, and focusing on the world and the future, can we resolve the most forward-looking and complex issues in the digital era. Nowadays, more than 140 countries and international organizations around the world have enacted data protection laws, and dedicated legislation for data protection has become an international practice. With the rise of big data, blockchains, artificial intelligence and other technologies, many countries in the world have launched a new round of revising their data protection laws. In China, by way of contrast, the related theory and practice has sufficiently developed, but concrete systems still remain in their infancy. Therefore, we gathered more than 600 data compliance policies from around the world to develop the blueprint and translated foreign data legal documents to form the Data Rights Law Translation Collection, covering nearly 100 countries and international organizations and nearly twenty languages. Thereafter, we compared and analyzed relevant provisions to provide a theoretical basis and reference for China’s ongoing legislation process in the digital field. We aim to bring the best of foreign experience into the formulation of the data rights law system with Chinese characteristics so that the Chinese system can be more inclusive, international, and farsighted.
Fifth, new branches of law are in the making. In recent years, computational law, digital law, intelligent law and other new branches of law have appeared one after another, forming a unique legal research field with data law at the core. The data rights law is a systematic integration of Chinese and western legal concepts for better global governance, and an institutional innovation against the background of a digital society. The aim of the data rights law is to analyze the influence of future social relations using existing legal systems and legal theories to find out the appropriate response, and further to construct a common rule system which keeps up with the times and adapts well to the global cyberspace governance. We call for the establishment of legal discipline, an academic system and a ←xxi | xxii→discourse system in the digital age under the guidance of data rights law, so as to promote the reform of the global governance system of the Internet and make a contribution to the construction of a community with a shared future for mankind.
Introduction
What Kind of Data Rights Law Do We Need
Have you ever thought of an echo world, where everything is the same as in this current world? The movie Redivider tells us a fantastic story of the echo world. Today, such a fantasy is becoming a reality, and the development of digital technology is accelerating the migration of human beings from a physical space to a digital space. This grand immigration has already begun but many people are still totally out of it. Everything is changing too quickly, everything is scary, and everything is possible and attractive, too. We know very little about this world, but worry a lot. What can we do today if we are hoping for a better future? What decisions to make and what changes to push for? These are questions we need to ponder. The digital world is a common space for the development of mankind, and all countries share the obligation and responsibility to govern this digital world. Deepening mutual trust, creating collective governance, and improving the rules for the development of the digital world are important prerequisites for promoting the transformation of the global cyberspace governance system of networks, important choices for building a community with a shared future in cyberspace, and important guarantees for promoting sustainable development of the digital world.
I Data Rights Legislation: Three Balances
The balance between data protection and data utilization. Both data protection and utilization are important parts of the development of the digital industry. Traditional civil law attaches great importance to the ←1 | 2→protection of privacy when it comes to data and personal information, which is based on the principle that personal life should not be disturbed, and that data disclosure is controlled by the subject who should be respected to the maximum extent. As the application of digital technology deepens, the development of society relies more on the mining and use of data, and partial emphasis on data protection can no longer effectively meet the needs of social development.1 Therefore, the first things to balance in the process of data rights legislation are data protection and data use; namely, how to regulate the collection, storage, and utilization of data (especially personal data) in the process of data mining, analyzing, and using, while effectively avoiding data leakage and abuse to ensure data security. To achieve such a balance, it is urgent that we build a dynamic equilibrium mechanism which encourages use and ensures effective protection.
The balance between the right to share and the right of privacy. The core of data rights is the right to share, which, as a system constructed based on the culture of altruism, deals with data sharing. The core of privacy is to realize unique personality interests through the control of the degree of openness to others. Data sharing and privacy protection in the digital age are in conflict in the fields of the self-determination of privacy, privacy in personal space, and information privacy, resulting from the game between public and private interests as well as the divergence between data property interests and personality interests in the new technological context. To maximize the value of data resources and strike a balance between the multiple interests involved, with the conflicts between the rights to share and the right of privacy, data rights legislation should follow some basic principles, such as the principle of public interest priority, the principle of derogation, the principle of proportionality, and the principle of equal protection. In addition, for data sharing, we aim to clarify its boundaries and limitations, set strict procedures thereto, strengthen supervision, and ←2 | 3→improve the liability and remedy mechanism of privacy infringement through specific legislation.
The balance between domestic law and international law. Domestic law and international law are parallel legal systems, the coordinated development of which is a basic requirement of contemporary international practice. We are not only against the erroneous tendency of denying generally accepted norms of international law by enacting domestic laws, but also object to negating national sovereignty through international law under the guise of human rights. Today, the world pattern is undergoing unprecedented changes and transformation, and mankind has entered a new era with numerous challenges and risks. In this regard, China provided the idea of a community with a shared future for mankind, which is a Chinese plan offered to people all over the world for the permanent and peaceful development of mankind. Under the guidance of this concept, international law can benefit from traditional Chinese culture and move from a perspective of conflict to of one of sharing in legislation. The theory of legal sharing is, instead of choosing one correct option from a number of conflicting laws, an approach that compares the laws of all countries involved and all related provisions from the perspective of substantial justice, according to the principle of proportionality so as to obtain the most reasonable and harmonious judgment. Based on innovations in science and technology, data rights law blazes new trails in the field of legal humanities; its core is to solve problems concerning the right to share. With altruism at the core, data rights law advocates the concept of legal sharing; reconstructs the discourse and value system of contemporary international law on the basis of the harmonious coexistence of the multiple cultures of all countries in the world; explores new ways to solve legal conflicts; and creates an international legal community with data rights at the core so as to push forward the building of a community with a shared future for mankind.←3 | 4→
II Data Rights Legislation: Four Problems
The problem of subject. Who will take the responsibility for decisions on personal data? Who has the sovereign right to own, use, make a transaction, share, and process the data? How is the ownership of data to be protected? These problems need to be resolved in data rights legislation. Personal data, as the core part of the data used by enterprises, as well as a major area of security risks, is the focus of protection in data legislation and management in various countries. As the object of personal data, individuals have a status similar to the “owner” of their personal data and this status has been recognized by legislation, and their rights are also developing. For example, through The General Data Protection Regulation and other similar legal documents, the European Union has established a model of personal data rights that clearly includes the right to data portability, the right to know, the right to choose, the right to rectification, the right to erasure, the right to obtain freely, the right to claim, the right to be forgotten, and the right to revoke authorization. Conversely, personal data legislation in China is relatively scattered, and is mainly provided in the Civil Code of the People’s Republic of China. Despite the two methods for the protection of personal data rights from the Civil Code – the right to claim in person and the right to claim in tort –many problems still exist in the legal remedy of personal data rights in the Civil Code, such as the blocked channels of civil compensation relief, the unclear liability undertaker in personal data infringement cases, the high cost of pursuing judicial relief for individual citizens, the long period of time required for the protection of legitimate rights and interests, the difficulty of providing evidence for victims, and the low cost of criminal acts against personal data, which leads to the repeated emergence of cases relating to infringement of personal data rights.
The problem of management. First, there are obvious defects in the current legislation of data rights in China, which is mainly reflected by the fact that there is no legal interpretation to define the legislation’s specific object; the incomplete rights of the data subject; the question of whether legal persons and unincorporated organizations are entitled to proper ←4 | 5→subject rights; and imperfect rights, obligations, and legal responsibilities. Therefore, the number of cases of personal data infringements is increasing. And, due to the frequent occurrence of telecommunications fraud and malicious harassment brought about by personal data leakage, the personal and property rights of citizens are under great threat.
Second, there lacks relevant implementation rules in the judicial practice relating to data rights, which leads to vast discretionary power. Moreover, since there are no unified criteria for the determination of “serious circumstances” and “especially serious circumstances,” the broad discretion of judges resulted in different judgments for similar cases in judicial practice.
Third, it is difficult to reach a balance between encouraging the development of relevant industries and effective supervision. The highly uncertain digital industry is always facing changes in terms of industrial paths, risk return, and market confidence, which challenges the traditional government supervision policy and the applicability of rules, and brings new problems to the goal and content of the governance of the industry.
Details
- Pages
- XXII, 414
- Year
- 2021
- ISBN (PDF)
- 9781800794351
- ISBN (ePUB)
- 9781800794368
- ISBN (MOBI)
- 9781800794375
- ISBN (Hardcover)
- 9781800794344
- DOI
- 10.3726/b18421
- Open Access
- CC-BY-NC-ND
- Language
- English
- Publication date
- 2021 (October)
- Published
- Oxford, Bern, Berlin, Bruxelles, New York, Wien, 2021. XXII, 414 pp., 7 fig. b/w, 23 tables.
