Different from the data-related laws and local regulations of other provinces and cities, it is the first basic and comprehensive legislation in the domestic data field to formulate individual and specialized data specifications from specific fields involving data. This regulation covers personal data, public data, data element market and data security.
In addition, the regulations first put forward "data rights and interests", clarifying that natural persons enjoy personal rights and interests in personal data according to law. Natural persons, legal persons and unincorporated organizations enjoy property rights and interests in data products and services formed by their legal data processing. Some experts believe that it is "more pragmatic" to give individuals property rights and interests in data products and services, and it can also "balance and protect personal rights and interests".
Take the lead in clearly proposing "data rights"
For a long time, the focus of data circulation is: who owns the data of transactions? How should the rights between subjects be distributed?
In July last year, Shenzhen issued the "Shenzhen Special Economic Zone Data Regulations" (draft for comment) (hereinafter referred to as the "first draft"), taking the lead in exploring data rights, and it is proposed to legislate to stipulate that natural persons have data rights to personal data.
Shenzhen's exploration of data rights has stirred up a thousand waves. Some experts believe that this will help Shenzhen to make breakthroughs in personal data, public data attributes and data transactions. However, some experts have questioned that Shenzhen has no right to stipulate the basic civil right of data right, and the definition of data right itself also needs to be considered.
Compared with the first draft, today's "Regulations" delete data rights and other related contents.
Although the public's understanding of data ownership is not uniform at present, it is difficult to create a new right type of "data right" through local laws and regulations, "personal data has the attribute of personality right" has been widely recognized, and some previous judicial precedents also admit that "enterprises have property rights to data products and services formed by investing a lot of intellectual labor results".
Based on this understanding, the "Regulations" took the lead in proposing "data rights and interests" in legislation, clarifying that natural persons enjoy personal rights and interests in personal data according to law, including rights and interests such as informed consent, supplementary correction, deletion, acquisition and reproduction; Natural persons, legal persons and unincorporated organizations shall enjoy the property rights and interests stipulated in laws, administrative regulations and these Regulations on the data products and services formed by their legally processed data, and may independently use, obtain benefits and dispose of them according to law.
In this regard, Wu Shen Kuo, executive director of the International Network Rule of Law Research Center of Beijing Normal University, doctoral supervisor and deputy director of the internet society of china Research Center, said that giving individuals personal rights and interests in data is the legislative direction established by the Civil Code and the future personal information protection law; Considering that the construction of digital economy and digital factor market needs a supporting mechanism, it is also correct to give individuals property rights in data products and services.
"Indulging in data ownership cannot effectively respond to actual needs." He believes that according to the system design, it is "more pragmatic" to determine the value that data can generate from the perspective of data products and services, and it can also "balance and protect the rights and interests of individuals".
Some experts hold different opinions. Shen, dean of Tsinghua University Law School, said that defining the object of data property rights as data products and services is intended to enhance the independence of data property, but it is difficult to realize the full circulation of data transactions through contractual creditor's rights rather than property rights.
In addition, this provision still does not divide the right boundary between the data originator and the data processor. Personal provision, enterprise processing or transmission can be legally handled and cannot play a role in resolving disputes. "Only by recognizing the theory of' reasonable expectation of privacy' and adopting the design of' data classification and grading system' can legislation balance the distribution of data property rights and the distribution of rights between individuals and enterprises in the process of circulation." Shen said to.
Big data can be fined up to 50 million.
Nowadays, from shopping, transportation, catering to medical care, office and other aspects, big data applications have been widely used to serve the people. With the rapid development of Internet companies, problems such as improper crawler data collection, improper platform selection and big data killing are prominent.
An active and healthy data factor market is inseparable from a fair and orderly competitive environment. In view of the competition chaos such as big data killing and "hitchhiking", the regulations stipulate that market entities shall not obtain data from other market entities by illegal means, or use illegally collected data from other market entities to provide substitute products or services, infringing on the legitimate rights and interests of other market entities; No unreasonable differential treatment shall be made to counterparties with the same trading conditions through data analysis. If the circumstances are serious, a fine of less than 5% of the turnover of the previous year shall be imposed, with a maximum of 50 million yuan.
With the development of digitalization, programmed and accurate advertisements have already penetrated into people's daily lives-just search for a product information in the browser, and other platforms will push advertisements accurately. Thousands of programmatic advertisements not only bring convenience to users, but also make users feel that their privacy has been violated.
In order to balance industrial development and privacy protection, the regulations stipulate that data processors can make user portraits and personalized recommendations, but the main rules and uses of user portraits should be clearly stated; Natural persons have the right to refuse user portraits and personalized recommendations, and data processors should provide them with ways to refuse.
In order to protect the network security of minors, the Regulations also clarify that, except for "safeguarding the legitimate rights and interests of minors and obtaining the explicit consent of their guardians", no personalized recommendation shall be made to minors under the age of 14.