In the epidemic, a college student returned to his home in Shandong from Wuhan and received a phone call asking for personal information and flight number. The personal information included name, phone number, ID number, home address, parent’s work unit, phone number, etc. Because people who know to return to their hometowns will go through this kind of investigation and think that the government is doing business routinely, so they actively cooperate with the truthful reporting. In the next few days, the student saw in the circle of friends that the information he reported was fully exposed without reservation and was publicly circulated in various WeChat groups. He also received various unfamiliar calls asking if he had a fever or not. At the same time, he found that more than one person had been treated in this way, and many people who returned home had the same experience as him. The disclosure of the personal information of Hubei people returning to their hometowns involves violations of citizens’ personal privacy, so it is illegal. This article will discuss privacy, criminal and administrative responsibilities.
ⅠPrivacy
The right to privacy refers to a kind of personality right that a natural person enjoys the peace of private life and the privacy of private information protected by law from illegal intrusion, knowledge, collection, use, and disclosure by others, and to what extent the subject of rights can intervene in himself Your private life has the right to decide whether your privacy is disclosed to others and the scope and extent of the public. The right to privacy is a basic personality right, which is currently not perfect in my country's laws and is still a subject of controversy. With the development of social informatization, citizens’ personal information autonomy should be paid more and more attention. Although different people have different definitions of information privacy protection, in practice, the protection scope of citizens’ privacy rights is roughly defined of. Under normal circumstances, the natural person's genetic information, certificate information, contact information, financial situation, marital status, health status, medical information, criminal records and other information that can identify the individual can be included. Therefore, the name, gender, ID number, address of the returnees involved in the case belong to information that can identify the individual and should be protected by privacy.
ⅡCriminal Liability
Paragraph 1 of Article 253 of the Criminal Law of the People’s Republic of China stipulates that: in violation of relevant state regulations, selling or providing personal personal information to others, if the circumstances are serious, it shall be punished with fixed-term imprisonment or detention of not more than 3 years, and shall be punished with a single fine; In case of imprisonment, imprisonment of more than 3 years and less than 7 years, and fines. According to this article, it can be known that the objective aspect needs to meet two requirements: selling to others or providing citizens’ personal information and serious circumstances.
For selling or providing personal personal information to others, if the government staff leaks the personal information of Hubei returnees collected, if it is for profit, it is consistent with selling to others; if it is not for profit, it is also consistent with selling to others provide. So whether or not it is profitable, this constituent element is consistent.
The Criminal Law of the People’s Republic of China does not make clear provisions for the determination of serious circumstances, but Article 5 of the Supreme People’s Court and the Supreme People’s Procuratorate’s Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Citizens’ Personal Information explains the scope : Illegal acquisition, sale or provision of citizens’ personal information under any of the following circumstances shall be deemed to be serious under the provisions of one of Article 253 of the Criminal Law. Among them, paragraphs 4 and 8 are as follows: illegally obtaining, selling or providing accommodation information, communication records, health and physiological information, transaction information and other 500 citizens’ personal information that may affect personal and property safety; Citizens’ personal information obtained in the course of performing their duties or providing services is sold or provided to others, and the amount or amount reaches more than half of the standards stipulated in Items 3 to 7, that is, more than 250. Therefore, if the government personnel disclose the personal information of citizens that they have collected according to their powers, they will comply with the provisions of Article 8, paragraph 8. If the number reaches 250, it will constitute a crime. So how to determine the specific quantity? Article 11 of the Interpretation stipulates that: if different units or individuals sell or provide the same citizen’s personal information separately, the number of citizen’s personal information shall be accumulated. In this case, the parties found that their personal information was exposed in the circle of friends and WeChat group. It is possible that the staff posted the same information to different people and groups, so the information sent repeatedly should be accumulated. However, it cannot be ruled out that it was only sent to a specific individual, and then the person who received it kept forwarding and spreading. If so, then the forwarding person may also constitute the crime. Therefore, it should be analyzed in conjunction with the details of the investigation.
Ⅲ Administrative Responsibilities
1.External responsibility
During the epidemic prevention and control period, the people's government played a leading role. While collecting information for Wuhan returning residents, it should abide by the relevant provisions of the Law on the Prevention and Control of Infectious Diseases. Article 12 of the Law on the Prevention and Control of Infectious Diseases stipulates that: All units and individuals in the field of the People’s Republic of China must accept the prevention, control measures such as the investigation, inspection, sample collection, and isolation treatment of infectious diseases of disease prevention and control institutions and medical institutions. , Truthfully provide relevant information. Disease prevention and control institutions and medical institutions shall not disclose relevant information and materials concerning personal privacy. If the administrative department of health and other relevant departments, disease prevention and control institutions and medical institutions illegally implement administrative management or preventive and control measures, infringing on the legal rights and interests of units and individuals, the relevant units and individuals may apply for administrative reconsideration or institute lawsuits according to law. The government and its subsidiaries belong to the administrative department of health and other relevant departments. In the process of exercising power, it is necessary to abide by the provisions of Article 12, and it is forbidden to use power to damage the legitimate rights and interests of citizens. Personal information belongs to the category of personal privacy. If it is leaked, the legitimate rights and interests are violated. Therefore, in the case of the leakage of personal information from the returnees in Wuhan, the government must bear the corresponding administrative responsibilities whether it is the fault of the staff or the intention.
Here we need to discuss the situation where the government directly publishes personal information. In this case, the government’s behavior is essentially an act of information disclosure. According to Article 2 of the “Government Information Disclosure Regulations”: “Government information” referred to in these Regulations refers to the information produced or obtained by administrative agencies in the performance of their administrative functions. Information recorded and saved in a certain form. One of the basic principles of our country's administrative law refers to the lawful administrative principle, and its connotation is that administrative agencies must implement administrative actions in accordance with the scope authorized by law. Therefore, government information disclosure is by no means limitless, and the scope of information disclosure required by law must be strictly observed. Article 15 of the Regulations on the Disclosure of Government Information stipulates that: Administrative information related to the disclosure of business secrets, personal privacy, etc. will cause damage to the legitimate rights and interests of third parties. However, if a third party agrees to make it public or if the administrative agency believes that non-disclosure will have a significant impact on public interest, it will be made public.
Below I will discuss two exceptions: For personal privacy that a third party agrees to disclose, then government disclosure does not violate personal privacy. But in fact, no citizen would be willing to allow any individual or organization to publicize his name, phone number, ID number, and address, not to mention the special period when the epidemic prevails. For personal information that will not have a significant impact on the public interest, it will not have a significant impact on the public interest. Because people returning from Hubei Province will implement self-isolation or centralized isolation under the unified management of the government, which will not jeopardize the public interest, and receiving medical observation is crucial to the public interest. Under this circumstance, the method of relief for privacy victimization is stipulated in Article 51 of the Regulations on Government Information Disclosure: citizens, legal persons or other organizations who believe that an administrative agency infringes on their legitimate rights and interests in the work of government information disclosure A first-level administrative agency or government information disclosure department may also file an administrative review or file an administrative lawsuit in response to a complaint or report. Therefore, it is feasible to file an administrative lawsuit and administrative reconsideration in accordance with the provisions of the Administrative Reconsideration Law and the Administrative Procedural Law.
2.Internal responsibility
After the government has undertaken administrative responsibilities externally, it must also be held accountable for its internal administrative responsibilities. Article 66 of the Law on the Prevention and Control of Infectious Diseases stipulates: The health administrative department of the people's government at or above the county level violates the provisions of this law, and one of the following circumstances shall be ordered by the people's government at the same level and the health administrative department of the higher people's government to make corrections and report criticism; causing infection If the disease spreads, spreads, or has other serious consequences, any other person directly responsible shall be given administrative sanctions according to law; those who constitute a crime shall be investigated for criminal responsibility according to law.
3.Conclusion
This article analyzes the government's responsibilities for the disclosure of personal information of people returning to Hubei from the privacy rights, criminal responsibilities, and administrative responsibilities, as well as ways for victims to protect their rights. Even if the government considers it in the public interest, it should not adopt such a simple method to subject the information subject to existing and other potential irreversible damage such as harassment, which violates the principle of administrative proportionality. In fact, in today's informatization, in order to avoid damaging the legitimate rights and interests of the parties, the government can fully realize the encrypted point-to-point transmission of specific information, and avoid the illegality of administrative actions, which has also reached social expectations.