Violation of the phenomenon of abuse of big data, use of information asymmetry and infringement of consumer rights
Use the hand of law to prevent "algorithm" from becoming "calculated"
□ Our reporter Zhu Ningning
Data security has become a major issue related to national security and economic and social development.
On June 10, the 29th meeting of the Standing Committee of the 13th National People's Congress passed the Data Security Law through a vote.
As a basic law in the data field, this law not only regulates data activities, but also pays equal attention to security and development, and makes corresponding provisions on measures to support the promotion of data security and development, and promote the open use of government data, so as to give full play to the role of data as a basic resource. And the role of innovation engine to promote the development of the digital economy with data as a key element.
With the advancement of information technology, big data has become ubiquitous.
On the one hand, big data can bring convenience and improve the speed and quality of economic and social development. On the other hand, it also brings problems such as data abuse, data leakage, and personal information leakage.
Therefore, how to not only stimulate and promote the innovative development of big data, but also regulate it to promote standardized development, has always been a key issue of legislation.
In this regard, some people in the industry suggest that on the one hand, we must improve the legislation to build a legal framework and clarify the legal red line; on the other hand, we must tighten the fence and strengthen the supervision of all parties to achieve "data for good."
Big data can not only "kill the familiar" but also "kill the living"
Many people may not have noticed that in addition to "killing familiarity", big data will also "kill life."
With the expansion of the application field of big data, the pre-payment consumption model that has been widely criticized in the fitness and beauty fields has begun to put on a new "coat" under the blessing of big data, and consumers have begun to face the upgraded consumption trap.
Ms. Bai (pseudonym) from Beijing entered a law firm after graduating last year.
Due to work needs, she has always wanted to find a foreign teacher to improve her oral English.
After browsing some advertisements on the Internet, she came across a “one-on-one” oral English class by a foreign teacher from a well-known education and training company, which claims to be specifically aimed at white-collar workers in the workplace.
The original price of the course is 47,880 yuan, and the total class time is 420 (25 minutes each time), with an average of 114 yuan per lesson.
The customer service staff told Ms. Bai on the phone that the one-time purchase of the class bag can be discounted, and the final price is only 23,940 yuan. On average, each class is only 57 yuan and can be paid in installments.
Faced with such a favorable price, Ms. Bai couldn't help but feel moved.
Out of professional habit, Ms. Bai carefully looked at the terms of the electronic format contract, and felt that something was wrong after reading it.
She found that the training institution has set two important clauses in the electronic format contract: one is that the fee cannot be refunded more than 30 days after the order is placed, and the other is that the course is invalid if the course is not completed for more than 820 days.
"The tuition fee of more than 20,000 yuan is not low, and the courses have to be used up within a certain period of time. 420 lessons are completed within 820 days. I am busy at work and often work overtime on business trips. It is true that I may not be able to finish the lessons within the valid period. "After thinking about it, Ms. Bai finally gave up the registration.
"This kind of business model belongs to the big data'killing'." According to Fu Linfang, a professor at the Zhejiang Institute of Culture and Tourism, the business model is carefully set up in three aspects: first, the design of the course product, which often amounts to hundreds of lessons. , It takes a long time to complete, and most consumers will not be able to complete it in the end; the second is to set very favorable prices and payment terms to attract a large number of consumers; the third is to design electronic contracts that are seriously unfavorable to consumers, and as far as possible not Let consumers notice in advance.
The surface "autonomy" is likely to be "calculated"
In the information age, collecting and using big data involves almost all platforms in the fields of food, clothing, housing and transportation.
Faced with the "dividends" brought by big data, businesses basically "can't help" take action to collect and analyze consumers' data, which has led to repeated prohibitions on infringements on consumer rights under asymmetric information.
It is understood that the usual way of using big data to "kill" is for businesses to use big data to make portraits of potential consumers, and then use the characteristics of the portraits to accurately induce the corresponding objects to purchase specific goods or services.
But in fact, these goods and services either have many traps themselves, or they are not what consumers really need.
Unlike the "killing" of big data, which is often easy to identify, the "killing" of big data is usually more concealed, and may even be "painless damage."
Because businesses use invisible and intangible big data to wipe consumers' oil is more concealed, and consumers are less noticeable when their rights and interests are damaged.
"On the whole, the use of big data to'kill' appears to be legitimate and legitimate, but it actually harms the legitimate rights and interests of consumers. It is difficult for consumers to identify their illegality. Therefore, it is difficult to deal with such infringement cases." Fu Linfang believes , Individual consumers are in a huge disadvantaged position facing operators who master big data and powerful algorithms.
Therefore, the so-called “consumer autonomous decision-making” may be the result of “calculation” to a large extent, and is not essentially the result of autonomous will.
This kind of behavior will have a reverse incentive effect on market innovation and big data applications, and it is necessary to find a solution from the system.
To achieve "data for good" still need to strengthen supervision
"The use of big data to'kill' or'kill' consumers against consumers violates the relevant provisions of the Consumer Rights Protection Law and violates consumers' right to fair transactions. At the same time, it also violates the principles of fairness and good faith in the civil law. Principle. If it is obviously unfair, it is a revocable civil legal act according to the relevant provisions of the Civil Code Contract." said Zhang Xinbao, a professor at Renmin University of China Law School.
The Internet is not illegal. Big data and algorithms based on big data are neutral. The key is the manipulating hand behind it.
Therefore, the regulation of big data applications and the governance of algorithms should be the focus of legislation.
It is worth noting that, in response to the "big data" problem, relevant regulations have been introduced one after another.
For example, the "Interim Provisions on the Management of Online Tourism Management Services" that came into effect on October 1, 2020 clearly stated that online travel operators must not abuse technical means such as big data analysis to infringe on the legitimate rights and interests of tourists.
In addition, local legislation has also begun to "kill" big data and other behaviors that abuse big data.
Recently, the "Shenzhen Special Economic Zone Data Regulations (Draft for Solicitation of Comments)" have been reviewed and publicly solicited on the website of the Standing Committee of the Shenzhen Municipal People's Congress of Guangdong Province.
Among them, in response to the problem of the use of big data on the Internet platform that has been strongly reflected by all sectors of society, the draft clearly proposes to give heavy penalties, stipulating that the illegal income does not exceed 10,000 yuan, and the penalty is 50,000 yuan. A fine of less than 50 million yuan or less than 5% of the previous year’s turnover.
The realization of "data for good" is inseparable from laws, regulations and effective supervision.
Some industry insiders pointed out in interviews that the current laws and regulations on the use and supervision of big data are still relatively general. In addition to further refinement for implementation, it is necessary to continue to speed up the improvement of laws and regulations to fill in gaps in rules and management loopholes in a timely manner.
"It's completely determined by the interests of the operators." Cheng Xiao, a professor at the School of Law of Tsinghua University, pointed out that companies use big data to conduct accurate advertising and sales and use big data to engage in other business activities. All are to maximize commercial interests. Within the current legal framework such as the Civil Code, E-commerce Law, Consumer Rights Protection Law, etc., it is recommended to further strengthen supervision and refinement at the level of laws and regulations, so as to better regulate operations. To protect the legitimate rights and interests of consumers.
Fu Linfang suggested to introduce departmental regulations to regulate online prepayment consumer business activities, and stipulate that operators who carry out prepayment consumer business activities through the Internet should clearly inform consumers of refunds, expiration dates, and other contracts that may seriously affect consumer rights and interests. Terms.
"In this way, it is possible to get rid of the'format contract framing' that operators have racked their brains, safeguard consumers' right to know, and solve the problem of big data'killing' to a certain extent."