The law should step on the brakes for "big data".
Experts suggest that clear provisions
should be
made in the personal information protection law
□ Our reporter Pu Xiaolei
As a diamond VIP customer with privileges such as "hotel reservations up to 15% off", when Ms. Hu booked a luxury lake-view double room on the Ctrip App, it would cost twice as much as other travelers.
Ms. Hu, who discovered this situation, believed that Ctrip had committed infringement of “big data” and brought it to court.
Recently, the People’s Court of Keqiao District, Shaoxing City, Zhejiang Province opened a court hearing of Ms. Hu’s v. Shanghai Ctrip Business Co., Ltd. for infringement disputes, and sent a judgment in court, ruling that the defendant Shanghai Ctrip Business Co., Ltd. compensated the plaintiff Ms. Hu for not paying the full compensation Three times the difference of 243.37 yuan and the booking difference of 1511.37 yuan to pay a total of 4777.48 yuan in compensation.
If similar behaviors occur in Shenzhen, Guangdong next year, the infringers may no longer be faced with the simple "refund of one compensation for three"-for the data element market "big data to kill the familiar" and other competition chaos, will be January 1 next year The "Shenzhen Special Economic Zone Data Regulations" (hereinafter referred to as the "Regulations") that came into effect today clearly stipulates that the maximum penalty is 50 million yuan.
Zhang Tao, director of the Chinese Society for Market Regulation, believes that in recent years, the problem of "big data killing familiarity" has frequently appeared and repeated prohibitions. The reason is that high "hidden returns" and low illegal costs have made some Internet information platforms feel confident.
"Regulation of the problem of'big data', although some problems can be solved by expanding the interpretation of Article 25, paragraph 3 of the second-review draft of the Personal Information Protection Law, the threshold for the application of this provision is too high, and The coverage is also narrow, and it is difficult to effectively regulate the behavior of'big data mastering'. In order to better protect the rights and interests of consumers, it is recommended to refer to the relevant content in the "Regulations" and add a direct provision in Article 25 to improve regulation The operability of the'big data' problem." Yao Zhiwei, a professor at the Law School of Guangdong University of Finance and Economics, said in an interview with a reporter from the "Rule of Law Daily" recently.
"Big data kills familiarity" behavior is concealed
Xue Jun, a professor at Peking University School of Law, pointed out that the so-called "big data" refers to the fact that one party in a transaction uses the information of the counterparty to the transaction to make individualized and differentiated pricing.
This differentiated pricing strategy was not common a few years ago, mainly because it is difficult for the relevant parties to grasp enough information about the counterparty of the transaction and the difficulty in processing the relevant information.
"However, with the development of Internet information technology, the massive collection of consumer data and the leap in business data processing and utilization capabilities have made differentiated pricing no longer difficult. Therefore, from a theoretical and logical point of view, in future business practices In China, it will become more and more common for merchants to adopt differentiated pricing strategies." Xue Jun said.
The most intuitive manifestation of "big data killing familiarity" is price discrimination.
Set different prices for new and old users, member users are more expensive than ordinary users; set different prices for consumers in different regions; users who browse the page for many times may face price increases; use complicated promotion rules and algorithms to implement price confusion settings , To attract consumers who have difficulty calculating real prices... The China Consumers Association pointed out that some operators use algorithms to discriminate against prices, causing selective target damage.
"The high'hidden return' is an important reason for the frequent occurrence of the'big data' problem and repeated prohibitions." Zhang Tao said.
Zhang Tao believes that the behavior and methods of "big data killing familiarity" are often concealed. It is difficult for consumers to detect this behavior or obtain evidence even if it is discovered without using multiple mobile phones or multiple people to compare at the same time.
At the same time, even if it is discovered at the time, consumers will often choose relatively low-priced goods or services to place orders.
Coupled with the relatively small "price difference", consumers often "tolerate" when considering rights protection cycles and costs.
This has also led to the fact that there are fewer rights defenders in reality, and to a certain extent the illegal behavior of related businesses has been condoned.
Consumers can hardly compete with their individual strength
"From the perspective of technical realization, any algorithm or artificial intelligence has a predetermined logic set in advance. The display of mathematical procedures only changes the performance mode, not its nature elements. From the perspective of legal nature, including personalized display , Recommendation, drainage, labeling, etc., should be recognized as autonomous behaviors of the platform, especially when the purpose of such technical behaviors is purely commercial interests. At present, technology neutrality is used as a defense reason to ensure technology infringement, and in judicial practice It has become more and more difficult to realize it in the supervision and law enforcement.” said Zhu Wei, deputy director of the Communication Law Research Center of China University of Political Science and Law.
The direct consequence of the "big data killing" problem is to damage the legitimate rights and interests of consumers.
Zhu Wei pointed out that the infringement of “big data” on consumers is concentrated in the violation of basic rights such as the right to know, the right to choose, and the right to fair trade.
Among them, the consumer's right to know is the basis of almost all other rights, and the "big data" is based on the premise of harming consumers' right to know.
Zhang Tao also believes that the simple use of "algorithms" for profit by merchants has harmed consumers' fair trading rights, constitutes price discrimination, and violates the relevant provisions of the Consumer Rights Protection Law.
However, the concealment of "big data" makes it difficult for consumers to find that their rights have been violated.
Factors such as the strong position of Internet information platforms and the high cost of safeguarding rights make consumers often fall into a situation where they are unable to safeguard their rights.
China Consumers Association Secretary-General Zhu Cambridge pointed out that common algorithmic application problems in the field of online consumption affect consumers' decision-making subtly. Consumers can hardly compete with their individual strength. If these phenomena are ignored and allowed to continue to develop, it is not conducive to the market economy on the one hand. Fair competition, on the other hand, makes the disadvantaged position of consumers more prominent.
All sectors of society need to work together to strengthen the research and regulation of algorithms in the field of online consumption, promote their reasonable application, and effectively protect the legitimate rights and interests of consumers.
Make clear provisions to improve operability
In response to "big data acquaintance", in recent years, many laws, regulations, and rules have made relevant provisions to regulate this issue.
Because "big data kills familiarity" often occurs in e-commerce activities, in order to solve this problem, the e-commerce law specifically provides that e-commerce operators provide goods or services to consumers based on their interests, consumption habits and other characteristics. If the search results are found, the consumer should be provided with options that are not specific to their personal characteristics, and the legitimate rights and interests of consumers should be respected and equally protected.
At the same time, because travel-related services are the most common scenario for the "big data to kill familiarity" problem, Article 15 of the "Interim Provisions on the Management of Online Travel Operation Services" that came into effect on October 1, 2020 clearly stipulates that online travel operators must not Abusing technical means such as big data analysis, setting unfair trading conditions based on tourists' consumption records, travel preferences, etc., infringing on the legitimate rights and interests of tourists.
The issue of "big data kills familiarity" has also received local attention.
The "Regulations" issued by Shenzhen clearly stipulate that market entities must not use illegal means to obtain data from other market entities, must not illegally collect data from other market entities to provide alternative products or services, and must not use data analysis to deal with counterparties with the same trading conditions without justified reasons. Implement differential treatment.
Those who refuse to make corrections in violation of the above regulations shall be fined 50,000 yuan up to 500,000 yuan. If the circumstances are serious, they shall be fined less than 5% of the turnover of the previous year, up to a maximum of 50 million yuan.
"The relevant provisions of relevant laws, regulations, and regulations on'big data' are sufficient to see the importance of this issue. At present, the relevant regulations may have poor operability or low legislative levels, etc. Problems, these problems need to be resolved when the personal information protection law is formulated." Zhang Tao said.
Currently, the draft of the Personal Information Protection Law is under review.
Article 25 of the second review draft of the Personal Information Protection Law stipulates:
The use of personal information for automated decision-making shall ensure the transparency of the decision-making and fair and reasonable results.
Commercial marketing and information push through automated decision-making methods should also provide options that are not specific to their personal characteristics, or provide individuals with a means of rejection.
To make decisions that have a significant impact on personal rights and interests through automated decision-making methods, individuals have the right to request personal information processors to explain, and have the right to refuse personal information processors to make decisions only through automated decision-making methods.
Yao Zhiwei believes that the first paragraph of Article 25 is a principled provision, the second paragraph is mainly aimed at personalized advertising push, and the "significant impact on personal rights" mentioned in the third paragraph is only applicable to a few cases.
"Compared with personalized advertisement push, the harm and loss caused by'big data killing' are greater, and this kind of behavior is more common, and it is difficult to apply the third paragraph, and it is difficult to constitute the so-called'right to personal rights' There is a significant impact on this situation." Yao Zhiwei said.
Yao Zhiwei believes that the "Regulations" have relatively complete regulations on "big data acquaintance", which can be absorbed and perfected and added to Article 25 as a direct regulation, which can not only improve the regulation of big data acquaintance problems. The operability can also provide a direct basis for local legislation in the future, so as to better protect the rights and interests of personal information, regulate personal information processing activities, and promote the rational use of personal information.