Privacy is a private matter. Personal information [1] Other things in personal life are unknown to others and have nothing to do with public interests and group interests. It is purely a personal matter, and no interference is allowed. Privacy is a kind of personality right that natural persons enjoy to control their personal information, private activities and private fields unrelated to public interests.
According to the definition of brandeis and Warren, privacy is a right to be alone.
The definition of Columbia University Electronic Encyclopedia is "the right to be alone without interference from the government, media or other institutions or individuals without justifiable reasons." According to the Oxford Law Dictionary, the right to privacy is the right not to be interfered by others. As for the right to claim that one's private life is inviolable or not to be illegally disclosed.
In our country, Mr. Peng, a civil law scholar, believes that the right of privacy refers to the right of citizens not to disclose or let others know their personal secrets. According to Mr. Zhang Xinbao, the right to privacy refers to a kind of personality right that citizens enjoy the peace of private life, and private information is protected according to law, and they will not be illegally harassed, informed, collected, used and made public by others. Mr. Wang Liming, on the other hand, believes that the right to privacy is a kind of personality right enjoyed by natural persons, which can control their personal information, private activities and private fields that have nothing to do with public interests.
Inclusion range
main body
The subject of privacy right should be a natural person, not including a legal person. The goal of privacy is to maintain human comfort and personal dignity. Privacy is a kind of personality right, which exists in the right holder's own personality, that is, the right based on the right holder's own personality interests. The most obvious feature of personality right lies in its non-property, and the secret of enterprise legal person is linked to the economic interests of enterprise legal person, which is a kind of property of enterprise At the same time, infringement of privacy will constitute a kind of personality injury and inner anxiety, while infringement of enterprise secrets will constitute the loss of economic interests of enterprises. Although legal persons also have secrets, they belong to the category of trade secrets and are protected by the Anti-Unfair Competition Law.
Logically speaking, the deceased should not enjoy the right to privacy, but the law should continue to protect the right to privacy of the deceased before his death. The reason is:
(1) The deceased is not a person in the legal sense and cannot have any rights, including the right to privacy;
(2) The protection of the privacy of the deceased is a kind of interest, which is the emotional interest and reputation interest of the deceased's close relatives and interested parties.
Compared with the deceased, interests are meaningless, but the privacy of the deceased before his death is closely related to his close relatives and interested parties, which constitutes a part of emotional factors or reputational interests of close relatives. Exposing the privacy of the deceased is likely to cause mental pain to the living close relatives and interested parties, thus protecting the privacy of the deceased, that is, safeguarding the reputation of the survivors.
target
The object of privacy is privacy. The definition of privacy, due to the differences of national culture and people's living habits, can be said that different people have different opinions. The word "privacy" comes from the United States, that is, "privacy" evolved from "private", meaning a private life that has nothing to do with others. In the current American legal system, the essence of privacy is a very broad concept, so there is no legislation or other documents to make a clear and specific definition of privacy. 1995 10 The White Paper on Privacy and Information Superhighway issued by the Telecommunications and Information Administration of the US Department of Commerce holds that the right to privacy includes at least the following nine aspects:
(1) Privacy of private property;
(2) Privacy of name and image interests;
(3) Do not interfere in the privacy of other people's affairs;
(four) the privacy of the internal affairs of the organization or enterprise;
⑤ Privacy about inconvenient appearance on some occasions;
⑥ respecting the privacy of others and not disclosing personal information;
⑦ Privacy about sexual life and other private lives;
8 privacy requirements about not being supervised by others;
Pet-name ruby private relative to the privacy of officials. It can be seen that in the current legal system in the United States, privacy has covered almost all aspects of individuals and personal life, and will also involve all areas of social life, becoming the most comprehensive and powerful "excuse" and "means" for protecting personal interests in modern society. For example, when interviewing for a job in the United States, it is generally not allowed to ask job seekers so-called "privacy" questions, such as immigration status, personal marriage, family status and identity health status, in addition to the occupation and position stipulated by law, in order to prevent all kinds of "discrimination". Therefore, privacy generally refers to private life and private information that is only related to the interests or individuals of a specific person, and the right holder does not want to be known by others. Privacy is different from the concept of privacy involved in the relevant laws of our country. It refers to the secrets related to men and women in social life, and of course it also belongs to the privacy part.
With the extensive use of Internet technology, many personal privacy problems have arisen, which will also bring unexpected problems to many aspects of personal freedom in the future development process. Among the privacy issues brought by the Internet, a key issue is the right to personal data.
The so-called personal data refers to a set of data used to identify the basic situation of individuals. Specifically, personal data mainly includes personal information related to the network, such as identifying personal basic situation, personal life and work experience and social situation. Network-related information includes the following four aspects:
① Identity and health status of individual login. When network users apply for services (shopping, medical care, making friends, etc.) provided by service providers such as online account opening, personal homepage, free email, etc. ), service providers often require users to log in their name, age, address, resident ID number, work unit and other identities and health status. Service providers have the obligation and responsibility to keep personal secrets and shall not disclose them without authorization. For example, the privacy statement of "Phoenix Website" states: "This website will strictly manage and protect the information you provide, and this website will use corresponding technologies to prevent your personal data from being lost, stolen or tampered with."
Personal credit and property status, including credit card, electronic consumption card, network card, online account number and password, trading account number and password, etc. All kinds of credit cards and accounts that individuals log in and use when surfing, spending or trading online belong to personal privacy and shall not be disclosed.
3 mailboxes and mailboxes are also personal privacy, and most users are reluctant to disclose them. Mastering and collecting users' mailboxes, making them public or providing them to others, causing users to receive a large number of advertising emails, junk emails or being attacked and unable to use them normally, causing users to be disturbed and obviously infringing on users' privacy rights.
④ traces of network activities. Personal traces of online activities, such as IP address, browsing traces, activity content, etc., all belong to personal privacy.
Main types
Freedom of personal life
The subject of rights should engage in or not engage in certain activities that have nothing to do with public interests or are harmless according to his own will, and be free from interference, destruction and domination by others.
Right of information confidentiality
Personal information, including all personal information and data. Such as height, weight, female measurements, medical records, physical defects, health status, life experience, property status, marriage, family, social relations, hobbies, beliefs, psychological characteristics and so on. The right subject has the right to prohibit others from illegally using personal life information, for example, not peeking into the secret parts of citizens' bodies, diaries and so on. , and without the consent of others, shall not be forced to disclose their property status, social relations and other private matters not known to the outside world.
Personal communication secret right
The subject of rights has the right to keep confidential the contents of private letters, telegrams, telephones, faxes and conversations, and prohibit others from illegally eavesdropping or stealing. The development of privacy system is closely related to the development of modern communication. With the rapid development of information processing and transmission technology, the content of personal communication is easy to be eavesdropped or stolen. Therefore, ensuring the security of personal communication has become an important content of privacy.
Personal privacy use right
The right subject has the right to use his privacy to engage in various activities according to his own will to meet his own needs. For example, writing an autobiography with personal life information, painting or photographing with your own image or body, etc. These activities cannot be illegally interfered, but the use of privacy must not violate the mandatory provisions of the law, and must not violate public order and good customs, that is, rights must not be abused. For example, using one's private parts to make obscene articles should be considered as illegal use of privacy, which constitutes an illegal act.
application area
(1) The subject of privacy can only be citizens, that is, natural persons, excluding the secrets of legal persons, especially corporate legal persons (in fact, business secrets). Trade secrets do not have the essential attributes of public interests and irrelevant group interests that privacy has.
(2) The object of privacy includes personal activities, personal information and personal fields.
(3) The scope of protection of privacy is limited by public interests.
Fundamental rights
According to the characteristics of the right to privacy, scholars at home and abroad generally believe that the right to privacy has the following four rights:
(1) The right to conceal privacy. The right to conceal privacy refers to the right of the right subject to conceal his privacy without being known by others.
(2) the right to privacy. Privacy refers to the right of natural persons to actively use their privacy to meet their spiritual and material needs.
(3) the right to maintain privacy. The right to maintain privacy refers to the right of the subject of privacy to maintain its inviolability, and when it is illegally infringed, it can seek public and private remedies.
(4) Privacy control. Privacy means that citizens have the right to control their privacy according to their own wishes.
Main significance
Embody the value of freedom
The right to privacy includes the right to peace of personal life, the right to confidentiality of personal life information, the right to privacy of personal communication and many other contents, all of which embody the free value of "eliminating artificial improper obstacles"; The free value of "domination" and "control" is the right to use personal privacy, that is, the right subject has the right to use his privacy according to his own will in order to engage in various activities to meet his own needs. The use of the right to privacy shall not violate the mandatory provisions, public order and good customs, that is, the right shall not be abused.
Reflect the value of the order
The establishment and protection of privacy ensures the relative stability of interpersonal relationship, the regularity of human behavior and the safety of personal property, which is mainly manifested in the following aspects: through the establishment of privacy, the rights and obligations are reasonably distributed to adjust the conflict between the right to know and the right to privacy; The legislation and strict implementation of the right to privacy not only maintains the peace and security of individuals, realizes the basic harmony between individuals and society, and achieves the goal of stability and unity of the whole society, but also ensures that people have more energy to study and work and better benefit human society.
Reflect the value of dignity
Privacy belongs to a specific personality right, and personal dignity is the basis of personal interests, so privacy naturally embodies human dignity, and protecting privacy means protecting human dignity. The right of privacy embodies a kind of survival art of modern civilization. Related to this, the right to privacy also means respect for others. If the law does not protect some interests that only belong to the personal field, then personal dignity will disappear.
laws and regulations
form
Article 38 The personal dignity of People's Republic of China (PRC) citizens shall be inviolable. It is forbidden to insult, slander, falsely accuse or frame citizens in any way.
Article 39 The residences of People's Republic of China (PRC) citizens shall be inviolable. It is forbidden to illegally search or illegally invade citizens' houses.
Fortieth the freedom and privacy of communication between the people of China and the citizens of People's Republic of China (PRC) shall be protected by law. When public security organs and procuratorial organs check communication according to the procedures prescribed by law, no organization or individual may infringe upon citizens' freedom and privacy of communication for any reason, except for the needs of national security or criminal investigation.
criminal law
Article 245 Whoever illegally searches another person's body or residence, or illegally invades another person's residence, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.
Any judicial officer who abuses his power and commits the crime mentioned in the preceding paragraph shall be given a heavier punishment.
Article 246 Whoever publicly insults others by violence or other means or fabricates facts to slander others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.
The crimes mentioned in the preceding paragraph shall be dealt with only if they are told, except those that seriously endanger social order and national interests.
Article 252 Whoever conceals, destroys or illegally opens other people's letters and infringes upon citizens' right to freedom of correspondence, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than one year or criminal detention.
Article 253 Postal personnel who open, conceal or destroy mail and telegrams without permission shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention.
Whoever commits the crime of stealing property mentioned in the preceding paragraph shall be convicted and given a heavier punishment in accordance with the provisions of Article 264 of this Law.
Article 253-1 Staff of state organs and financial, telecommunications, transportation, education, medical and other units. Whoever, in violation of state regulations, sells or illegally provides personal information of citizens obtained by the unit in the course of performing its duties or providing services to others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or only be fined.
Whoever steals or illegally obtains the above information by other means, if the circumstances are serious, shall be punished in accordance with the provisions of the preceding paragraph.
Where a unit commits the crimes mentioned in the preceding two paragraphs, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of each paragraph.
general rules of civil law
Article 100 Citizens shall enjoy the right to portrait, and shall not use their portraits for profit without their consent.
Article 101 Citizens and legal persons enjoy the right of reputation, and their personal dignity is protected by law. It is forbidden to damage the reputation of citizens and legal persons by insulting or slandering.
Opinions on several issues concerning the implementation of the general principles of civil law
140. Anyone who discloses others' privacy in written or oral form, or fabricates facts to publicly vilify others' personality, and damages others' reputation by insulting or slandering others, thus causing certain influence, shall be deemed as an act of infringing citizens' right to reputation.
Whoever slanders or slanders the reputation of a legal person in written or oral form, thus causing damage to the legal person, shall be deemed as an act of infringing the reputation right of a legal person.
14 1. Anyone who steals or imitates another person's name and causes damage shall be regarded as infringing on the right to name.
Other laws and regulations
Tort liability law
In China's current laws, only Article 2 of Tort Liability Law stipulates that the scope of civil rights and interests includes the right to privacy.
According to China's national conditions and relevant foreign materials, the following acts can be classified as infringement of privacy:
1. Make public the name, portrait, address, ID number and telephone number of citizens without their permission.
2, illegal intrusion, search other people's homes, or otherwise disrupt the peace of others.
3. Illegally stalking others, monitoring others' residences, installing eavesdropping equipment, secretly photographing others' private lives, and spying on others' indoor conditions.
4. Illegally spying on others' property status or publishing their property status without others' permission.
5. Privately open other people's letters, peek at other people's diaries, spy on other people's private documents and make them public.
6. Investigate and spy on other people's social relations to make them illegal.
7, interfere with other couples' sexual life or investigation.
8. Publicize other people's extramarital sex life to the public.
9, the disclosure of personal materials of citizens or open or expand the scope of disclosure.
10, collecting pure personal information that citizens are unwilling to disclose to the society.
1 1. Publicize other people's secrets without permission.
protect minors
Article 39 No organization or individual may disclose the personal privacy of minors.
No organization or individual may conceal or destroy minors' letters, diaries and emails; No organization or individual may open or consult the letters, diaries and e-mails of minors without legal capacity, except that the public security organs or people's procuratorates conduct inspections according to law in order to trace crimes.
Privacy should not be a "protective cover" for cheating students.
In the past few days, many students and parents of Suizhou No.2 Middle School reported to this newspaper that some students cheated in exams by scrolling on the big screen next to the teaching building of the school, which hurt students' self-esteem and violated their privacy. (April 19 Jingchu. com)
Speaking of dealing with fraudulent students, let's take a look at the practice of Harvard University, a world-renowned university. Students of this school 125 are suspected of cheating in the final exam last semester. After half a year's investigation and evidence collection, Harvard University announced that 60 students who cheated in the exam were suspended from school, and the remaining 65 students suspected of cheating were detained for observation and the other half were pardoned. And Harvard is not unique in punishing students who cheat so badly. Stanford University in the United States has formulated an "honorary code of conduct", which clearly stipulates that students "shall not give or get help in exams, and shall not accept any unauthorized help in homework, submitted reports or any teacher's grading work". Students who violate the code for the first time will face the punishment of suspension for a quarter of the school year and 40 hours of community service; For irreparable behavior, the school will give expulsion. In the United States, about 65,438+000 schools have formulated "honor code of conduct".
Although these are all regulations from universities, they also show that American schools are very strict in dealing with fraud. Perhaps, Europe and the United States and other universities have achieved fruitful results, or they may be based on these strict management. On the other hand, however, our education, whether in universities or middle schools, seems to only emphasize "tolerance" for students' mistakes. Not long ago, Shandong University ordered some "soy sauce" students to drop out of school, which even caused a curse. As for primary and secondary school campuses, punishing students has become a minefield that schools and teachers dare not set foot in. Under such layers of care, our students often don't move in our ideal direction.
China's old adage emphasizes that to be a man, one must be an adult first. Then, cheating in exams should be a necessary condition for adults and talents. However, this theoretical emphasis is not binding. And if it is made public on campus, it has violated the right to privacy. Then, in the face of cheating students, we may have to secretly remind them in private. In any case, we can't regard privacy as a protective cover for students' fraud.
Of course, in order not to harm the legitimate rights and interests of students, we can also learn from some scientific and democratic practices. When implementing the Code of Honorary Conduct, Stanford University emphasized that these punishments must be tried by a six-member jury including four students, 1 teacher and 1 administrator. Today, a middle school in Zhuhai has also begun to try the arbitration and appeal system for disciplinary action. Guangzhou Daily reported that Zhuhai Nanshui Middle School began to implement the arbitration and appeal system for students' violations this week. It is no longer the school leaders and teachers who have the final say, but the students who have the final say.
Such measures may not be 100% perfect, but one thing we can be sure of is that it is meaningless to blindly tolerate students who make mistakes. Students' right to privacy really needs our respect and protection, but students' fraud also needs our management and punishment.
judicial explanation/interpretation
Whether it constitutes the responsibility of infringing the right of reputation should be determined according to the fact that the victim's reputation is damaged, the actor's behavior is illegal, there is a causal relationship between the illegal behavior and the damage consequences, and the actor is subjectively at fault. Whoever insults or slanders others in writing or orally and damages their reputation shall be regarded as infringing on their reputation. Without the consent of others, publishing other people's privacy materials in written or oral form or making others' privacy public, thus causing damage to others' reputation, shall be punished as infringement of others' reputation right.
Disputes over the right of reputation caused by writing and publishing critical articles shall be handled by the people's courts according to different situations:
The problems reflected in the article are basically true, and there is no content that insults others' personality, which should not be considered as infringement of others' reputation rights.
Although the problems reflected in the article are basically true, there are contents that insult others' personality and infringe others' reputation, which should be considered as infringement of others' privacy. If the basic content of the article is untrue and damages the reputation of others, it shall be deemed as infringement of the reputation right of others.
protection measures
Personal privacy is protected by law. Invading others' private lives and revealing others' privacy is both a violation of social morality and an illegal act. Surveillance, spying on other people's private lives, spying on other people's secrets by reading diaries and opening letters privately are all acts of violating privacy. Of course, for the benefit of the public, it is not an infringement for law enforcement agencies to investigate and disclose the relevant information of the parties according to law.
To respect the privacy of others, we must establish a sense of privacy. Make it clear that everyone is an independent individual, and get rid of the old concept of "the father is the son and the husband is the wife" that advocates personality attachment in our traditional culture; Do not interfere in other people's private space, do not gossip, do not expose people's shortcomings, and do not disturb people's peace; I am not keen on asking about other people's private affairs and spreading other people's secrets because of curiosity. We should correct some bad habits of not respecting others' privacy.
Respecting the privacy of others requires strengthening the sense of responsibility and honor. Personal privacy includes two most loyal guardians-responsibility and honor. Relatives and friends often share some personal secrets, which is based on mutual trust. At this point, we should assume the responsibility and credibility of this privacy, which can not only protect our own privacy, but also protect and respect the privacy of others. People should respect each other's privacy. Protecting citizens' right to privacy is the call of morality, which is helpful to establish good social morality.