"WeChat friend relationship is not considered privacy"?

Lawyer: specific analysis of specific scenarios

  Our reporter Zhang Galun

  Civil code around

  "Shenzhen Nanshan Court ruled: WeChat friendship is not privacy." Recently, the first-instance result of an infringement dispute case was refined into a similar title, which caused heated discussions on the Internet.

  User Wang discovered that after logging in to Tencent's "Weivision" App using WeChat or QQ, WeChat would obtain all his WeChat or QQ friend information.

Therefore, Wang sued Tencent for infringing on its privacy and personal information rights.

The judgment circulated on the Internet shows that the court held that the friend relationship advocated by Wang did not include a private relationship that he did not want to be known to others, and that others could not judge his personality through his WeChat friend relationship, which led to negative or inappropriate evaluations. , Determined that the WeChat friend relationship claimed by him is not private.

  This seems to be different from the public's definition of privacy.

  In fact, at the end of July 2020, the Beijing Internet Court had issued judgments in two cases of considerable concern, and held that the two apps, WeChat Reading and Douyin, violated users’ personal information, but did not violate privacy rights.

  In this regard, attorney Wu Danjun, a partner of Guantao Zhongmao’s Shanghai office and a legal expert from the Shenzhen Big Data Research and Application Association, said in an interview with a reporter from Science and Technology Daily that the analysis of these three judgments reveals that the definition of privacy and judgment in the network environment Whether it constitutes an infringement requires a specific analysis based on specific scenarios.

  The protection of personal information or privacy depends on specific scenarios

  The judgment of the Beijing Internet Court in July last year is considered to be a typical case embodying the protection of citizens’ personal information rights in the Internet era by the Civil Code.

  These two cases can be referred to as the "WeChat Dushu Case" (Case No.: [2019] Jing 0491 Min Chu No. 16142) and the "Thumb Sound Case" (Case No. [2019] Jing 0491 Min Chu No. 6694).

  In the WeChat reading case, users found that WeChat Reading read the WeChat friends list without their consent, automatically followed friends, and opened reading information to WeChat friends.

In the Douyin case, users registered for Douyin with a mobile phone without an address book and were recommended to a large number of people they knew in real life.

  Has privacy violated?

The court held that no.

However, it violated the rights of personal information.

  The Civil Code defines privacy as "the tranquility of the private life of a natural person and the private space, private activities, and private information that are unwilling to be known to others."

Privacy is different from personal information.

Wu Danjun analyzed that the former pays more attention to passivity, defensiveness and stricter protection; while the latter emphasizes prevention, it also emphasizes the active and self-determined use rights of information subjects.

  In the WeChat Reading case, the Beijing Internet Court divided personal information into three levels: private information that is socially agreed, general information that is not private, and personal information that has both defensive expectations and positive use expectations.

WeChat friend lists and reading information are considered to be the third type of information.

The court held that it is necessary to use a "scene mode" to explore whether there is any violation of privacy in the scene.

  According to Wu Danjun’s analysis, it can be seen from these two cases that the court realized that because personal information carries multiple interests such as personal rights, corporate interests, and social and public interests, there is no fixed decision on how to judge whether personal information is private or not. , Standards that can be directly applied, which makes the protection of personal information or privacy dependent on specific scenarios.

  So, can the matter that the court considers not to be private, can it be disclosed at will?

  Still cannot be generalized.

  Wu Danjun said, taking names as an example, in daily social interactions, we often proactively provide our names to others. At this time, names are generally not considered private.

However, in some specific scenarios, the name should be considered private and protected accordingly.

For example, in the famous "No. 1 Human Flesh Search Case" in China, disclosing the plaintiff's real name, work unit, home address and other information is an infringement of privacy.

  Analyzing precedents is of great significance to clarifying the boundaries of personal information protection

  In the era of big data, the development of data processing technology impacts the ability of information subjects to control their personal information.

Ordinary information subjects who lack professional knowledge and technical capabilities may not be able to fully predict the potential risks of certain personal information processing behaviors and make always correct judgments.

Wu Danjun said that the analysis of these court precedents should not stop at the stage of simply judging right or wrong. More importantly, analyzing the cases can clarify the boundaries of personal information protection for us and bring practical enlightenment to balance information protection and data utilization.

  In the current legal system of personal information protection in my country, "identification" and "relevance" are the key to defining personal information.

However, whether this understanding is completely correct, there are still many other opinions in the academic and practical circles.

Due to the characteristics that the sensitivity or privacy of personal information will change according to specific scenarios, the judgment of whether a certain piece of information is personal information, whether it is personal sensitive or private information is not a static fixed result, but a Dynamic, a dynamic judgment process affected by multiple factors.

  Wu Danjun also pointed out that in spite of this, for some information that has a risk of infringement in most scenarios, it can be clear in advance in legislation to prevent risks.

For example, the Civil Code clearly defines the name, date of birth, ID number, biometric information, address, telephone number, email address, health information, and whereabouts information of natural persons as personal information. The Personal Information Protection Law (Draft) defines race , Ethnicity, religious beliefs, personal biological characteristics, medical and health, financial accounts, personal whereabouts and other information are deemed sensitive personal information.

"Of course, we can't be limited to this. In specific cases, we still need to combine specific analysis with specific scenarios." Wu Danjun emphasized.