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Abstract The protection of personal information in the digital age has shifted from the center of legislation to the application of a law, and from individual control to social co-governance, but still faces a structural dilemma: not only are the relevant provisions of substantive law ineffective, but procedural governance also faces a lack of specific regulations. Public interest litigation for the protection of personal information is still a new field of research worldwide, and both theoretical and practical studies have not yet reached a sufficient level. The question of how to regulate and build a procedural rule of law system to address the need for personal information protection in the digital age is a major issue both at home and abroad.
Civil public interest litigation attached to criminal cases is an independent procedure derived from criminal litigation, which is not an integral part of criminal litigation, but usually assists criminal litigation to play the role of safeguarding public interests, protecting the rights of victims, and correctly convicting and sentencing. From the perspective of procedural design and purposive theory, civil public interest litigation attached to criminal cases has special characteristics that are different from criminal litigation and civil litigation incidental to criminal proceedings, and also different from civil public interest litigation and administrative public interest litigation. The inclusion of personal information protection in the scope of civil public interest litigation attached to criminal cases has a significant unique value. Firstly, with the development of public interest litigation in China, the institutional environment for the protection of personal information has been formed, which has the institutional basis for the construction of civil public interest litigation attached to criminal cases for the protection of personal information. Secondly, personal information has certain public attributes in the current social environment, and incidental civil public interest litigation. Thirdly, the civil public interest litigation attached to criminal cases for the protection of personal information is different from other public interest litigation in that the public authority intervenes to eliminate the unequal status between the infringing subject and the infringed subject.
In the absence of specific and comprehensive guidelines, a comprehensive analysis of 205 judicial practice cases reveals four main areas of controversy. Firstly, the difference in the substantive criteria for judging the applicable conditions, i.e. how to accurately understand the conditions for public interest litigation as “violation of information processing regulations& infringement of numerous personal rights and interests”. Secondly, whether it is appropriate for the procuratorate to be the sole subject of prosecution. Thirdly, how to determine the subjects of defendants in different procedures; and fourthly, the intersection of types of litigation claims and criminal and civil liability.
On this basis, it is proposed that the improvement of the civil public interest litigation system for the protection of personal information should be. Firstly, to strengthen the legal supply, we must review the issue of the legitimacy of the civil public interest litigation system, and adopt a “two-step” approach to build a perfect legal system for public interest litigation. Secondly, it is important to clarify the core of the pre-litigation procedure is the announcement procedure, to clarify and refine the provisions on punitive damages and to clarify the status of the procuratorial authorities in the second instance and retrial procedures for the protection of personal information. Thirdly, it is important to reasonably position the status and supervision functions of the procuratorial authorities in the litigation and to strengthen simultaneous supervision and post-event supervision. Finally, it is important to focus on the synergistic governance between various types of litigation. It is necessary to pay attention to the synergy between various types of litigation, to strengthen the judicial protection of personal information from the perspective of procedural rule of law.
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Published: 15 May 2023
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