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Options towards a global standard for the protection of individuals with regard to the processing of personal data
گزینه های استاندارد جهانی برای حفاظت از افراد در مورد پردازش داده های شخصی-2020 Purpose: States have adopted a number of international instrument dedicated in full or in part to privacy and data protection, at multilateral or regional levels, in binding or non-binding form. This article discusses the potential and context of the emergence of a possible
global standard on data protection focusing on the 1981 Council of Europe Convention for the Protection of Individuals with Regard to
the Processing of Personal Data, as amended (Convention 108+).
Aims: With due regard being paid to the dynamic technological and business environment that surrounds policy-making in the field of personal data protection, this article attempts to look at some strengths, weaknesses, opportunities and challenges of Convention 108+ in the competition for becoming a global standard. It seeks to identify possible future directions and priorities, taking into account the evolving nature of international relations in a more multipolar world where multilateralism is less obviously the preferred approach to international issues. Findings: Informed by an in-depth study of relevant international instruments relating to the right to privacy this article explores several strengths and opportunities that may be built on to promote a global role for Convention 108+, but also some weaknesses and threats. In sum, it concludes that the Convention is relatively well placed to ambition becoming a global standard. |
مقاله انگلیسی |
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The legal construction of personal information protection and privacy under the Chinese Civil Code
ساخت قانونی حفاظت از اطلاعات شخصی و حریم خصوصی تحت قانون مدنی چین-2020 Personal information protection and privacy interact in diverse ways, especially in the contemporary information age. Although books and articles have focused on this topic, the
new tendencies of worldwide legislation and judicial practice bring challenges, as the legal
construction of personal information protection and privacy differs from culture to culture
and time to time. In 2017, the General Provisions of the Civil Law of the People’s Republic of
China (“the General Provisions of the Chinese Civil Code” hereafter)1 (expired) addresses the
legal concepts of personal information protection and the right to privacy simultaneously,
to which this article refers as the dual model, differing from the one-dimensional mode
of privacy protection before. Subsequently, the “The Right to Privacy and the Protection of
Personal Information,” a chapter of the newly issued Civil Code of the People’s Republic of
China’s (“the Chinese Civil Code” hereafter), ascertains the dual model and details related
provisions. It has been dubbed a landmark ruling of China’s personal information protection, greatly boosting the modernization of China’s civil system.
Despite the many articles that discuss approaches to China’s civil protections, little attention has been given to the fundamental question concerning what exactly encompasses
the personal information protection and privacy to which these laws refer. Based on the
regulations and applicability of the General Provisions of the Chinese Civil Code and the
Chinese Civil Code, this paper explores the legal construction of personal information protection and privacy under Chinese legal orders, including the differences, similarities, and
interplay between the two rights. By distinguishing the legal value, contents and remedial
approaches, this paper concludes that the two rights are distinct but overlap. On one side,
personal information protection is elevated to the status of a separate civil right in the legal
context of China, rather than part of privacy. On the other side, tailored regulations should be establish according to the criteria of the nature of information, the extent of information
processing, and the elements of damage when confronted with overlaps in the two rights
in judicial practice. Thus, this paper provides a perspective from which to clarify the approaches to civil protection of personal information and privacy in China and a reference
model for enactment of the Chinese Personal Information Protection Law in the future.
Keywords: General Provisions of the Chinese | Civil Code | Chinese Civil Code | Personal Information Protection Privacy |
مقاله انگلیسی |
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Analysis of the attributes of rights to inferred information and China's choice of legal regulation
تجزیه و تحلیل ویژگی های حقوق به اطلاعات استنباط شده و انتخاب مقررات قانونی چین-2020 Researchers who study data collection, analysis, and use in the era of big data and algorithms are paying increased attention to inferred uses. The information inferred by an algorithm has distinct personality and property interests and challenges existing theories of personal information and privacy. However, a complete method of legal regulation for such information does not yet exist in China. This article focuses on how to recognize the nature of inferred information and how to carry out appropriate legal evaluation and regulation to better protect the legitimate rights and interests of relevant subjects in China. Based on China’s social needs and judicial practice experience, the "contextual integrity" privacy theory developed by Professor Nissenbaum can be used to evaluate whether inferred in- formation is infringed upon, and we believe that China is likely to adopt the US regulatory model. Keywords: Inferred information | Right to personal information | Right to privacy | Intellectual property | Legal regulation |
مقاله انگلیسی |
4 |
Tor does not stink: Use and abuse of the Tor anonymity network from the perspective of law
تور بدبو نیست: استفاده و سوء استفاده از شبکه گمنام تور از منظر قانون-2016 Tor is one of the most popular technical means of anonymising one’s identity and location online. While it has been around for more than a decade, it is only in recent years that
Tor has begun appearing in mainstream media and openly catching the attention of governments and private citizens alike. The conflicting interests related to the use and abuse
of Tor also raise a number of legal issues that are yet to be analysed in depth in academic
literature. This article focuses on a number of relevant legal issues pertaining to Tor and
reflects our initial legal comments, while noting that all of the identified legal questions
merit further research.
After introducing the technical side of Tor and the attitudes of governments towards it,
we (1) explore the human rights connotations of the anonymity provided by Tor, coming to
the conclusion that this anonymity is an integral part of certain human rights, particularly the right to privacy and the right to freedom of expression. Government activities with
respect to Tor should thus not be unlimited. In relation to this, we (2) provide a closer look
at the problem of content liability of the Tor exit node operators. Finally, we (3) point out
several legal problems in conducting criminal investigations with the need to obtain the
evidence from the Tor network.
We conduct this legal analysis in the context of international and European law, paying
a particular attention to the case law of the European Court of Human Rights and the Court
of Justice of the European Union.
Keywords: Tor | Anonymity | Human rights | Privacy | Freedom of expression | Content liability | Criminal investigation | Evidence | Personal data | Tor exit node |
مقاله انگلیسی |
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Digital citizenship and the right to digital identity under international law
شهروند دیجیتال و حق هویت دیجیتال تحت قوانین بین المللی-2016 Australia has formally recognized the importance of digital identity and has raised the issue
of reciprocal rights and duties between the government and its citizens. Australia is the first
country to articulate digital citizenship in these terms.
This paper considers the respective rights and duties of government and citizens that
could be included in a digital citizenship charter, and the likely legal implications. The paper
explores these aspects in relation to digital identity because of its increasing commercial
and legal importance.
The author argues that considering the consequences for individuals, the right to identity, as an international fundamental human right, should now be recognized and protected
in relation to digital identity. The argument is presented that recognition and protection of
this right is an essential component of a model of accountable and responsible digital citizenship. While the paper uses the Australian concept of digital citizenship as the basis for
the discussion, the issues are relevant to all jurisdictions implementing e-government initiatives that require an individual to use digital identity for transactions.
Keywords: Digital identity | Digital citizenship | Right to identity | Right to privacy |
مقاله انگلیسی |
6 |
Health data privacy and confidentiality rights: Crisis or redemption?
حقوق و حریم خصوصی و محرمانه بودن داده های سلامت: بحران یا رستگاری؟-2014 Although widely analyzed by authors and theoretically valued by the public, the right to
health data confidentiality seems to be more of an academic figure than a real protected
right. This happens due to intrinsic problems with the practical enforcement of some
patient’s rights, but is getting more notorious in contemporary society.
This article describes the rights to health data privacy and confidentiality in their classical
contours, focusing on areas of consensus and controversy and analyzing the recent transformations in society that are causing a crisis in these same rights. We agree that there are
reasons to believe that there are no novel legal instruments in Health Law to redeem these
rights, except for European Data Protection Law. Here, we briefly analyze the new European
data protection draft regulation, which intends to bring reinforced tools on this domain.
We conclude that the juridical aura that still embraces the right to medical and genetic
data confidentiality in Health Law and Bioethics seems to no longer have a practical sense.
However, despite this perception, the essential dimension of individual freedom relating to
personal information and to the notion that the less is known about us the freer we all are is
still very relevant and so Health Law needs to dedicate more attention to the transformations
of privacy and confidentiality in the medical and genetic fields in order to maintain them
protected and respected.
Keywords: Right to privacy | Right to confidentiality | Health data | Health data protection and security | Patient’s rights | European data protection law |
مقاله انگلیسی |