Keywords: the right to the protection of personal data · constitutional rights · institutional guarantees · constitutional principles · constitutional interpretations

 

 

On October 6, 2021, a post divulging a torrent link to a 125GB data file that could be openly downloaded from the live streaming platform Twitch, an overseas streaming platform, was published on the web forum 4Chan. The file included all the source code of Twitch, the creators’ earning list, an unreleased Amazon Steam competitor ‘Vapor’, and other things, from Amazon Game Studios. In fact, in August 2021, Amazon as the parent company of the platform Twitch was investigated by the National Commission for Data Protection (CNPD) due to data leak issues, and Amazon was issued with a fine of 746 million euros by the CNPD.¹ With the rapid development of digital society and artificial intelligence, “the number of data leak events is increasing, and it has brought organizations affected by the events severe financial and law problems.”² At present, more and more people are endorsing that “the first and foremost risk brought by the digital life is that data use may lead to further human rights infringement behavior in the process of preventing other rights infringements. Besides, acquisition and use of data may, in essence, be an infringement of human rights, especially the right to privacy and the right to know”³. Given the important value of personal data to the development of digital society, the Constitution, as a fundamental human rights guarantee of countries ruled by law, has superiority over the right to the protection of personal data (“Superiority of the Constitution is higher than lawmakers and other state power, and it makes the Constitution become national criteria”⁴). What’s more, the Constitution shoulders the special task and essential mission to “determine the national development direction” and maintain “the invariability and stability of the overall national order”⁵. Hence, to discuss the right to the protection of personal data at the constitutional level is of special significance.⁶

 

 

 

According to the human rights guarantee theory of modern constitutionalism, the purpose of a state drawing up a Constitution is to realize the checks and balances of the internal structures of the state through the organization law of the state and to designate external boundaries by using fundamental rights to ensure the smooth implementation of social self-regulation. “The constituent power belongs to the nationals as the subject of all the public powers. The constitutional powers belong to the organizations established by the people through their constituent behaviors. These organizations shall work according to the people’s delegation and in various conditions specified in the constitution by the people. Therefore, they cannot arbitrarily change these conditions; otherwise, it may cause the whole institutional pattern to fail. These organizations can only do things according to the constitution and do what is specified by the constitution. Therefore, their behaviors can be believed to be legally binding only when their activities are consistent with the provisions of the constitution.”⁷ The state is the subject of the basic obligation to protect civil rights, “the state action is to maintain various rights,”⁸ and the fundamental objective of the state’s presence and operation is to let the rights and freedom of each individual who lives in the state be comprehensively and institutionally guaranteed with the support of the coercive force of the state. To satisfy the people’s intentions and demands is the legitimate basis for the presence of the state. “The state is affairs of the people. The people are not a group of people, but a community formed by numerous people according to their accepted laws and common interests.”⁹ As the subject of the obligation to maintain and safeguard human rights, the state must achieve the goal of protecting civil rights by using state power and establishing order, especially when civil rights are threatened or infringed. In this sense, the state becomes the legal order shared by members of the political community, and “the state is a set of rules restricting interactive actions between individuals, a kind of order that can be described with the following main points and a compulsory order. In other words, it attempts to crack down on undesirable human behaviors by taking compulsory measures. The above statements imply that this order is the legal order.”¹⁰ In this legal order, the state power establishes and builds a system of rules that community members must abide by and jointly maintain. Meanwhile, the state must rely on institutionalized well-functioning public order to fulfill the obligation to protect human rights. “Modern human rights are in essence no longer an indicator for the past ideal pursuit, or a slogan hung on a wall, but an object specifically guaranteed and practiced by the state power and overall legal order. This is the important essence and significance of the current human rights.”¹¹ Thus, it can be seen that the modern state bears the obligation to protect all the rights of the people as independent individuals, which is both the critical value of the state’s presence and the logical starting point and the ultimate goal of state action.

 

Because a constitution regulating state action is abstract and involves principles, it generally delegates legislative powers to a legislator, that is, the “constitutional entrustment” relationship between the constitution and the legislator. It requires the legislator to fulfill the obligation to establish and continue to make new laws according to the routes and goals specified in the constitution, determine the specific contents of the laws to be made by using the systematic constitutional interpretation and achieve the “contents formation” function of the legislator’s full interpretation of the constitutional norms.¹² This means that the state as the subject of the obligation to protect fundamental civil rights must effectively deal with and timely solve the alienation phenomena of powers that appear in the digital society through the state action of legislation, specify the connotation and exercise modes of the powers, and ensure that the powers can be exercised within the scope of the rule of law and certain space will be left for civil rights development and personal free choices. Some scholars believe that the state fulfills its obligation to protect personal information (data), mainly to resist and relieve the unlawful use risk of personal information through “data power.”¹³ “Data power” refers to the government’s power to generate, spread, manage, control, use and protect data within its jurisdiction. It is a public power.”¹⁴ The data power naturally has the characteristics of public power. Therefore, to effectively regulate the data power through national legislation is an essential approach of a modern state to deal with the digital society risks and balance multiple rights and interests among complicated data subjects. The state is both a decisive political entity of the modern society that can legally use force to deal with uncertainties and risks and the subject of constitutional powers that can legally use force. It should be the state’s duty to comprehensively regulate the risks that the exercise of the data power may bring. “The protection obligation helps grasp the action methods and multiple legal relations specified according to the risks and the complicated decision forms used to regulate the multiple legal relations.”¹⁵ Meanwhile, the state should fulfill the obligation to maintain the legal order of universal significance, especially the state’s protection obligation established in the subjective rights theory taking the right to being protected as the base point, which helps resolve the theoretical dilemma of the state’s protection obligation defined in the subjective value theory.¹⁶ This reveals how to achieve the national value of the good governance goal in the national legal order, helps provide expectable legal environments for operation and development of the digital society and promotes benefit sharing, mutual benefit and cooperation between data subjects to achieve various tasks and goals of the state specified in the constitution better.

 

At present, the development trend of internet information technology is very rapid. “We are entering a new era. In the new era, some new architecture has appeared and made our governing power reach an unprecedented height. Therefore, we must know what to do by using this power, and moreover, know what we should not do by using the power.¹⁷ In the face of data platforms of the big data era and the mighty “data power” of the state organs¹⁸ and in front of the dominant position of the people exercising the “data power” over individual citizens, if the state power neither actively intervenes in the situation nor fully plays its important role in the protection of civil rights, it will be difficult to imagine the right to the protection of personal data can be comprehensively and effectively protected. “Such a power structure is like two persons standing at both ends of a telescope who are looking at each other: one sees an infinitely enlarged and clear image of the other, while the other one sees only an extremely reduced black spot.”¹⁹ Therefore, to strike a rough balance between the right to the protection of personal data and data power, and rationally restrict and cautiously control data power have become inevitable requirements that the state should fulfill to protect human rights based on constitutional entrustment in the digital era. 

 

 

Human dignity is the core of all rights of a person as an independent individual. “People are most important, and all the other things are the fruits of human labor.”²⁰ Meanwhile, human dignity is also the value basis for establishing constitutional order in a state. “‘Human rights’ — people’s fundamental rights, indicate that the people have ‘human dignity’. The people without human rights are the people without ‘human dignity’ …are only living creatures.”²¹ Rationalism is the theoretic basis of life dignity. “People can independently regulate and develop themselves based on rationality, and they can shape and achieve their own life and lives. This kind of capability is human dignity.”²² The German philosopher Kant expounded on human dignity deeply and systematically: “A valuable thing can be replaced with another thing because they are equivalent. On the contrary, the thing which transcends all other things in value and cannot be replaced with any other thing is dignity.”²³ Kant strongly emphasized the connotation of autonomy and self-determination in human dignity, and he regarded personal autonomy as the basis for the dignity of human nature and all rational things, which was the essential meaning of the sentence “People are always the ultimate goal.” Because people have the characteristic of being rational, they must be respected at any time. Therefore, the fundamental connotation of human dignity as the value basis of the constitutional order is that people can never become objects, tools or means, “the state must not treat people (only) as tools, means or goods for its functions and the people shall have their “free space” for their autonomy. Thus, dignity is generated based on these.”²⁴According to the value idea of “people being the objective,” in the public order of citizens and state constructed by the constitution, the presence of people is superior to the presence of the state, people are the objective of the presence of the state and they are also the pursuit of the ultimate value of the state operation and development. “The republic as a definite object for political governance is always enthusiastic in the improvement of a valuable or admirable life quality of mankind.”²⁵ To make each individual live a dignified decent life, the state shall actively fulfill its obligation to protect human rights, make it impossible to treat individuals as objects, tools, or means, and always regard each individual as a dignified, independent, and irreplaceable presence. “Human dignity has the highest value, and it is the basis for the protection of human rights. The dignity of each person shall be respected no matter whether the person is strong or weak.”²⁶ To put it bluntly, all legal systems of modern states should start with respecting and protecting human dignity, and only by doing this can it be deeply understood that all objectives of the state’s presence are to respect and realize the fundamental human rights system with human dignity at its core. “The generalized abstract essence of human rights included in human dignity is making human dignity different from respective rights that form by means of contract laws and legal relations and becoming the base point used to judge whether the establishment of social life and national life has legitimate value no matter whether human dignity is regarded as higher-level values, norms or principles.”²⁷ This shows that maintaining and realizing human dignity is an essential theoretic basis for proving the right to the protection of personal data a constitutional right. 

 

In the current Constitution of the People’s Republic of China, “The State respects and preserves human rights” of Article 33, “Freedom of the person of citizens of the People’s Republic of China is inviolable” of Article 37, “The human dignity of citizens of the People’s Republic of China is inviolable” of Article 38, “The residences of citizens of the People’s Republic of China are inviolable” of Article 39 and “Freedom and privacy of correspondence of citizens of the People’s Republic of China are protected by law” of Article 40 all show that the state has both a negative obligation of non-interference in and a positive obligation to protect the fundamental human rights of citizens and human dignity as a fundamental right of citizens. “In a human group (state), human dignity and value self-actualization and satisfaction are one of the state’s tasks. The task of the state is to protect human dignity and human value (passive) and help achieve human dignity and human value (active).”²⁸ The right to the protection of personal data can be linked to the fundamental rights related to personal information processing, such as right of equality, human rights clauses, personal freedom, residence right, communication right, social right, economic right and cultural right, based on the constitutional “human dignity” clause… It has been linked to multiple rights specified in the Constitution. A single fundamental right category can hardly cover it.”²⁹ Meanwhile, emphasizing the right to the protection of personal data is the intrinsic requirement for realizing and maintaining human dignity. It should be fully understood that the person as the subject can autonomously decide and freely select the data related to him or her. The state has obligatory responsibilities for realizing and guaranteeing the right to the protection of personal data. “The principle of ‘respecting human dignity’ makes no exceptions. All the people have the same dignity, and they are equal at any time. There is no difference in quantity, quality, etc.”³⁰ When data power operation may threaten civil rights in a digital society, the state must build a law system to protect personal data by making laws and taking human dignity as the kernel value. 

 

 

With the advent of the digital era, the protection of civil rights as digital social governance should be the goal pursuit considered first. It is also the value basis for the right system of unique individuals, i.e., “digital citizens,”³¹ that are active in the digital society. “One direct consequence of the current information revolution is that people’s social behaviors and daily contacts are carried out by using digital technology, we are no longer only “biological mankind.” We have been endowed with the new attribute of being “digital mankind.” People leave abundant identity data, relational data, behavior data and speech data every moment, every hour and every day, and they have obtained new ‘biological (digital)’ two-dimensional orientation.”³² Data are the most fundamental material for AI and algorithm systems and the production factors for development of the digital economy, and also the communication media for heterogeneous subjects of the plural society to share information and the unique code and information symbols used by “digital citizens” to identify, verify and trace other “digital citizens.” Digital citizens should cautiously and inclusively deal with the risks brought by the development of the digital industry, and also be familiar with and understand the state’s laws on data and fulfill the relevant obligations specified by the law to achieve their citizenship. “Digital citizens are used to indicate the people who can abide by the corresponding provisions and are responsible for their behaviors when they use digital technology.”³³ Abiding by the corresponding provisions and being responsible for the relevant behaviors are the basic requirement for digital citizens, especially data processors of administrative organs, network platforms, information technology companies, etc.. The data processors can accurately identify people by using data mining technology and data analysis and processing technology, analyze basic personal information, activity routines and habit preferences, provide special customized intelligent services by pushing personalized information and then greatly promote efficient governance of the digital society. Meanwhile, however, the consequences brought by infringement of personal information, the right to privacy and the right to know are severe. “In most circumstances, the people monitored when using data technology do not know the monitoring process at all, and they neither feel they are ‘being monitored’ nor become aware that their privacy has been infringed.”³⁴ The phenomenon that people whose rights have been infringed do not know the infringement will undoubtedly lead to alienation of the social governance goal and further affect the balance of the state’s legal order. Therefore, the right to the protection of personally-owned data related to the person should be regarded as a fundamental civil right and be protected by the state. This is both the concentrated reflection of personal free and autonomous will and a precondition for individuals achieving free and comprehensive development. 

 

First, the essence of the right to the protection of personal data is based on the right to self-determination of citizenship information. The right to the protection of personal data, in short, is the right of an independent person to complete control and free use of “identifiable” data, and the right should be protected. According to the definition of personal data specified in the General Data Protection Regulation of the European Union, personal data refers to all information of any identified or identifiable natural person. An identifiable natural person refers to an individual that can be directly or indirectly identified through identification elements, especially through identification data such as name, identity number, location data and online identity, or an individual that can be identified through one or more factors of the physical, physiological, genetic, psychological, economic, cultural or social characteristics of the natural person. Thus, it can be seen that personal data is closely associated with personal information. The right to the protection of personal data should especially focus on the control of personal information collection, use and spread. This is because the right to the protection of personal data is, in essence, the right to the protection of self-determination of the information that has been formed based on personal data due to personal citizenship, and this right to self-determination of the information is of a decisive significance for realization of self-value and self-development. “If a natural person cannot independently decide whether his or her personal data can be collected, stored and used by other people based on his or her own idea and the person does not have the right to prohibit other people from obtaining and using his or her personal data against his or her will, the free personality development and human dignity of the person is out of the question.”³⁵ Article 8 of the Charter of Fundamental Rights of the European Union states: “Everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and based on the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right to access data collected concerning him or her, and the right to have it rectified. Compliance with these rules shall be subject to control by an independent authority.” The provision as mentioned above vividly reflects the characteristic that the right to the protection of personal data is derived from the individual’s independent decision right. 

 

Second, the right to the protection of personal data reflects the citizenship of an individual as “a new human form.”³⁶ Constitutional rights directly embody individuals’ citizenship of the state, i.e., the subject position of the constitution of the state. “Constitutional rights include human rights enumerated in the constitution, human rights derived from generalized right protection clauses and other rights. Though a definition of human rights can be broad or narrow, human rights are defined based on ‘human dignity’ or ‘human dignity’ in the contemporary era. It has been emphasized that human rights are the rights naturally enjoyed by any person as a person.”³⁷ As for the constitutional fundamental right attribute of the right to the protection of personal data, some scholars believe that “the examination of the case law of the European Union Court of Justice shows that the essence of the fundamental right to data protection is an even more elusive concept than the essence of the right to privacy”³⁸. In fact, this is mainly because the right to the protection of personal data mainly reflects the characteristic of “the new human form” in the digital era. According to the definition of the International Organization for Standardization, “data are reproducible information in a form suitable for communication, interpretation or processing.”³⁹ It is stated in Article 3 of the Data Security Law of the People’s Republic of China that data “means any records of information in electronic or any other form”. “Viewing from the essence of information, the concept of personal data includes descriptions of any type of information about a person. It covers ‘objective’ information such as a material in some blood. It also includes some ‘subjective’ information, comments or assessment.”⁴⁰ In other words, data are the premise and foundation of personal information formation, the new media for interactions and communication among people in the digital society, and the adhesive for co-construction of the social governance community and sharing each other’s information. To achieve the status of data subject in the social life, citizen individuals as the subject of the constitution should require the state to adopt the passive policy of non-intervention in citizens’ control and use of the right to their data, and also have the right to request the state’s legislature, judicial organs and administrative organs to cooperate with each other and jointly fulfill the constitutional responsibilities for ensuring that citizens’ right to the protection of personal data will not be infringed. Especially when data has become an identity recognition factor of the “new human form” developed by natural people by using AI, algorithm systems and internet technology, if the absolute accuracy of data cannot be ensured and some mistake is made, “the consequence of the mistake may be horrible.”⁴¹ One can imagine that the individual freedom and self-development of “data people” constrained by AI and algorithm systems can hardly be achieved and effectively protected if the state is in a data governance dilemma. 

 

Finally, defining the constitutional right attributes of the right to the protection of personal data is the objective requirement for algorithm fairness, digital justice, and preventing the abuse of national public power. “The ultimate protection of individuals must be established based on the system for the right to privacy, data protection and the right to self-determination of information.”⁴² Generally speaking, ordinary citizens as massive data producers and users have neither the professional ability to master information technology nor the right to absolute control and processing of their own data. Therefore, they can exert no influence on the automated decisions of algorithms. “To prevent value and power from being controlled by a few people, we must try to balance the benefits and risks of digital platforms (including industrial platforms), ensure their openness and provide opportunities for cooperative innovation.”⁴³ According to the legal reservation principle of the countries under the rule of law, all data protection activities should be regulated by specific laws. Therefore, the state should arrange the legislative power, the administrative power and judicial power under the framework of the rule of law, define the right to the protection of personal data as a constitutional right, fairly and rationally determine the data rights and obligations on this basis, ensure that data users will normatively use data and prevent data monopoly to protect the balance among the right to the protection of personal data, the right to information, the right to privacy and the right to know. “Majority rule is not worth being regarded as a standard by special political states or constitutional governments unless it is really consistent with both equal human dignity and individual autonomy value.”⁴⁴To exercise and protect the right to the protection of the personal data as citizenship that intensively reflects human dignity in the digital society, create a new governance order in the digital society jointly constructed and shared and maintain the justice of the digital society governance system, it is inevitable to stipulate the difference in personal data protection at the constitutional level integrating all the department laws, break through the narrow barriers protected by the traditional department laws and comprehensively respond to the actual risks and difficult legal problems of 

personal data protection. 

 

 

As network technology, information technology and digital technology are rapidly applied in society, data is more and more widely applied in various industries and a lot of decisions cannot be made without the data used by algorithm systems in daily life. The most direct protection of the right to the protection of personal data is to stipulate the right in the state’s law system as a legal right. So far, 32 countries have definitely written data and information (the right to personal data and the right to information) in their constitutions and specified that the right is one of the fundamental civil rights when they drew up or revised their constitutions.⁴⁵It can be found by systematically reorganizing constitution texts of various countries that the provisions of the overseas constitution texts on the right to the protection of personal data can be classified into two types: Confirmation of citizens’ constitutional right and stipulation of the constitutional obligation of the state. The constitution texts usually directly and definitely announce and stipulate the constitutional status of the right to the protection of personal data as a fundamental civil right or specifically stipulate how the legislative body, administrative organs and judicial organs of the state should fulfill the obligation to protect citizens’ personal data from the angle of the state as the constitutional obligation subject. 

 

It can be seen from the constitutional texts of countries that have recently made or revised their constitutions that definite stipulations are included stating the “individuals have the right to the protection of the data related to them”: Most of these countries, such as Poland, Turkey, Portugal, Switzerland, Greece, Mexico, Austria, and Spain, have separately stipulated the right to the protection of citizens’ personal data in the parts “Citizens’ Fundamental Freedom and Rights”, “Human Rights and Freedom”, Rights, Freedom and Their Guarantee”, “Personal Rights and Freedom”, “Human Rights and Minority Rights and Freedom” of their constitutions. The main contents of the right mainly include an explicit declaration of the right to the protection of personal data and the specific provision on the obligation of the state to protect personal data. 

 

 

As an essential part of the fundamental rights system of citizens, the right to the protection of personal data should be explicitly stipulated. The above-mentioned constitutional texts of various countries stipulate the right to the protection of personal data, directly declare that the right to the protection of personal data shall be guaranteed by the constitution or stipulate that every person has the right to the state’s protection of personal data. This shows that the right to the protection of personal data is becoming a fundamental right of citizens explicitly stated in the constitutions of modern countries. Besides, it can be found by examining the constitutions of the countries that have definitely defined the right to the protection of personal data that the right to the protection of personal data actually has an abundant connotation. According to the provisions of the constitutions of various countries, the connotations of the right to the protection of personal data includes at least the following content: (1) Every person has the right to the protection of his or her personal data when his or her personal data is collected, processed and used, especially the special protection of his or her personal data when his or her personal data are electronically collected, processed and used. (2) Every person has the right to know the data related to him or her and the right to require that untruthful or incomplete personal data information or illegally-obtained personal data information be corrected or deleted. This means that collecting, using and publishing personal data of an individual needs to be consented to by the individual. Every person has the right to be told the collected data about him or her unless otherwise stipulated by law. Every person has the right to require that untruthful or incomplete data or illegally-collected data be corrected or deleted. (3) Collection, retention, processing and use of personal data shall conform with the principle of legal reservation, the principle of proportionality and the least restrictive alternative and regulated by the laws of the state. The state’s legislative body shall legislate on the recording and publication of personal data, and also make laws about the right of individuals to ask about their recorded data, use of the data, and call for correction of the data, etc.. (4) When the right to the protection of personal data is abused and infringed, it shall be prohibited and punished by law. Individuals have the right to initiate judicial proceedings and achieve relief. In other words, individuals have the right to require that their data be suspended, corrected, kept secret and updated when they encounter wrong data or data discrimination. Viewed from this angle, the right to the protection of personal data has the dual attributes of a subjective public right and an objective value order: The right to the protection of personal data as a subjective public right endows citizens with a defensive right which can be used to resist the reckless infringement of the organs of state power, i.e., eliminate improper intervention and unlawful infringement of national public power; taking the implementation and development of human dignity in the social community as the center, the right to the protection of personal data as an objective value order can be effectively applied in each department law field, i.e., it can form an objective law order in a broader sense, and based on this objective law order, it provides universal value guidance and action guides for the legislative body, administrative organs and judicial organs. 

 

 

In the meantime, many countries have explicitly stipulated the constitutional obligation of state organs to protect personal data. The constitutional obligation of the state to protect personal data includes at least a passive protection obligation and an active protection obligation. The passive protection obligation is mainly that the state shall not collect and process personal data at will. The intervention of judicial organs can be asked for when the right to the protection of personal data is infringed, and the right relief can be achieved by initiating judicial proceedings. This requires that the state should not force anybody to disclose his or her personal data unless it is based on the law; state organs shall not obtain, collect or disclose citizens’ information unless the information is necessary for state governance; every person can initiate legal proceedings and timely achieve the right relief if his or her right to the data in his or her personal archive is infringed. The active protection obligation is that the state shall establish a basic legal system for the right to the protection of personal data, set up a right-obligation relationship structure between individuals and personal data collection and processing personnel, build a right and interest balance mechanism among multiple data subjects, effectively regulate the contradictions and conflicts between individuals and multiple data collectors, standardize data and efficiently and steadily supervise data. 

 

“The process of rights protection always constantly varies. Its pace varies with the human ability to do evil. It is an endless process. It is almost impossible to establish a perfect and eternal right. What we must work hard to do is not to make rights perfect, but to constantly propose practical rights so that they can counter the human ability to create terrible new things.”⁴⁷ Though the countries that have established their constitutions early, such as the United States and Germany, often protect personal data information through interpretation in the judicial practice, by reading the explicit provisions of the right to the protection of personal data specified in the constitution texts of various countries, it can be seen that more and more countries have decided to regard the right to the protection of personal data as an explicit constitutional right, which helps individual citizens as the constitutional right subject to realize self-determination and free development and supervises power to prevent abuses and any infringements on citizens’ human dignity by the data controllers and data processors such as the organs of state power. The right to the protection of personal data can be maintained and achieved only if the state actively fulfills its obligations, especially in the big data era. To accomplish this right requires the state to make efforts, provide an effective institutional guarantee and help individuals reduce the risks of their human dignity being violated in the large-scale continuous data processing process. This is the real value of the right to the protection of personal data as an independent fundamental right of citizens at the European Union level.⁴⁸ In terms of the current digital society governance, the people governing the state shall establish a legal system to ensure security, confidentiality and integrity of personal data. “The significance of every rational constitution is that it will establish an organizational system, and the organizational system will cause the will of the state to be established.”⁴⁹ Therefore, the state’s legislative body shall actively fulfill its constitutional obligation to make personal data protection laws. All the subjects of data control, collection, use and spread shall abide by the legitimacy, the principle of fairness, and the principle of purpose limitation. The judicial organs shall effectively balance the legal interests between various subjects in the data law relationship so as to promote the legal flow and orderly sharing of data to the maximum extent and achieve the sound development of the digital society and the harmonious win-win relations among the multiple heterogeneous subjects. 

 

 

 

The institutional guarantee as an essential theory of constitutional interpretation has shown its unequalled superiority for a long time in the human rights protection practice.⁵⁰ Xu Zhixiong, a scholar from China’s Taiwan island, believes that the connotations of the so-called passive “institutional guarantee” in the primary sense include: “The purpose of the institutional guarantee is to guarantee a specific law system, but not to guarantee any fundamental rights stipulated by the constitution, and the system already existed before the constitution was enacted; the precondition for the institutional guarantee is that the related legal system must have a point connecting with the constitution; the contents of the institutional guarantee are that the legislator cannot infringe upon the typical characteristics of the law system that have been included in the constitution category, i.e., the scope of the institutional guarantee is limited to guaranteeing the core and essential part of the existing law system.”⁵¹ The active “institutional guarantee” requires that the state legislator stipulate and fulfill the obligation to protect the fundamental rights of citizens, and “the legislative body should establish systems by making laws, further make the specific connotations of the constitutional fundamental rights clear and guarantee the implementation of the fundamental rights. The function of the fundamental rights that actively requires the legislator to establish and maintain systems and promote the implementation of fundamental rights is the so called institutional guarantee (institutionelle garantien) function, and the state has an institutional guarantee obligation for this”⁵². The academic community has not reached a consensus on what the institutional guarantee is, and the academic community still has many questions about it.⁵³ However, the institutional guarantee is crucial for the effectiveness of both the maintaining of legal order and civil rights protection. The institutional guarantee provides a special guarantee mechanism to control any abuses of legislative power and maintain the fundamental law order of the state, especially in the aspect of preventing the legislator from abolishing or cancelling the core value of the fundamental rights included in some constitutional norms.

 

It can be seen from this that the institutional guarantee actually judges whether a legislative action or an administrative action of the state is unconstitutional based on the implementation of the constitution taking the constitution as the center to safeguard the authority of the state’s constitution and maintain the fundamental rights guarantee mode of the constitutional order of the state. In the practice of the protection of the fundamental rights, however, the institutional guarantee overlaps the beneficial power function, protection obligation function and procedure guarantee function of the fundamental rights to some extent. It is challenging to clearly demarcate the institutional guarantee, the organization and procedure guarantee and the guarantee that the state protects citizens from any third party’s infringement. Therefore, the academic community has interpreted the institutional guarantee in both a narrow sense and a broad sense: The institutional guarantee in the narrow sense only refers to the organization and procedure guarantee. The institutional guarantee in the broad sense includes the organization and procedure guarantee that the state should fulfill in the modern sense to protect the fundamental rights of citizens and all the obligations of the state, such as the payment obligation and the beneficial power function.⁵⁴ The value of the institutional guarantee for the guarantee of the fundamental rights of citizens is that the institutional guarantee provides interpretive routes through the implementation of the constitution texts, distinguishes and strengthens the concept of level difference between constitution and laws, promotes the implementation of the constitution, makes the institutional mechanism at the constitutional level effectively operate and protects the fundamental rights of citizens. “The breath-taking pace of technological change in recent decades is fueling social transformations while the foundation for modern free social life is the collectivistic morality, politics and constitutional values. If this cannot be fully guaranteed at the institutional level, the morality, culture and political foundation, i.e., common value will be eroded, then the democratic political system will be destroyed and the individual freedom, autonomy and self-determination capability cultivated and protected by the social and cultural system we have established will inevitably come to an end… What is a good digital life? Only then can we identify whether the vision of the good digital life currently offered to us is one of that we willingly wish to embrace. If not, to identify the social and technical governance mechanisms that are needed to reorient us, and to nurture and sustain the fundamental values that are vital for individuals and communities to flourish in the data-driven age.”⁵⁵Therefore, after the state has a mature constitution theory and a complete constitutional implementation mechanism, to establish a comprehensive, systematic and rigorous legal system according to the constitution design of the state and rationally regulate the exercise of the legislative power, executive power and judicial power of the state is the basic approach to comprehensively, fully and effectively protect the fundamental rights of citizens. 

 

“The function of the institutional guarantee is to require the state legislator to actively legislate and establish institutions, the administrative organs to exercise their executive power according to the law and the judicial organs to accept and hear cases and make decisions according to the law so as to achieve the fundamental rights guarantee.”⁵⁶ The significance of the institutional guarantee as a fundamental rights clause of the constitutional interpretation is that the institutional protection system to generate the objective legal order and fundamental rights of the state can be established focusing on the provisions related to the fundamental rights of citizens. “The fundamental rights are subjective rights of individuals, and also a kind of institutional guarantee… The state legislator should establish an institution to ‘form’ the connotation of the fundamental rights and ‘guarantee’ the implementation of the fundamental rights. Therefore, the function of the institutional guarantee includes actively requiring the legislator to legislate in which direction. If the legislator does the opposite and fails to establish institutions and guarantee the fundamental rights, the law belongs to the unconstitutional law.”⁵⁷According to the human rights protection practice of modern countries under the rule of law, protection of the fundamental human rights of citizens is mostly achieved through the legislators of the countries. On the one hand, the legislative bodies can stipulate the regulation field for the fundamental human rights of citizens through legislative activities guided by human dignity and constitutional value. On the other hand, legislative bodies can stipulate specific provisions for fundamental human rights by making laws, fully implementing and protecting the fundamental rights of citizens and stipulating very specific provisions to fully reflect the fundamental rights. Because most of the fundamental rights stipulated in the constitution are abstract principles, the fundamental rights can be effectively protected at the department law level only after the legislative bodies stipulate very specific provisions for the fundamental rights. “The effects of legislation on the fundamental can be discussed in multiple dimensions. Legislative bodies can clearly define the regulation field and guarantee scope of fundamental rights and shape the expression forms of fundamental rights in the free space, and also implement the fundamental rights clauses specified in the constitution through specific laws. Meanwhile, legislative bodies can also limit and regulate the exercise modes of the fundamental rights based on rational and legitimate reasons.”⁵⁸ It can also be seen from the right to the protection of personal data specified in constitution texts of overseas countries that to select the constitutional approach of the institutional guarantee is the universal position on personal data protection in most countries, and this is also the moral principle of modern constitutional states to require legislative bodies to actively fulfill their constitutional obligation to protect personal data, regulate data processing activities of multiple heterogeneous subjects and promote the opening, flow, development, use, cooperation and win-win of data as a production element in the digital economy development.

 

 

First, when the legislative body of a state carries out legislative activities for the right to the protection of personal data by using the institutional guarantee principle, it shall abide by the principle of constitutionality. As essential criteria to judge whether a state’s public power is rationally applied, values complying with human rights protection, legal retention, the principle of proportionality, and the principle of specificity are included in the principle of constitutionality. It should always be emphasized that the right to the protection of personal data is the critical content of the human dignity of citizens, especially in the current digital society governance process, to prevent the public power of the state from abusing and infringing personal data. If it is difficult for the data related to citizens to be protected by law, the citizens can’t enjoy the right of personality. Though the right to the protection of personal data is not explicitly stipulated in the constitution of China, the Data Security Law of the People’s Republic of China states that the state should protect the rights and interests of individuals and organizations related to data, and public security organs and national security organs shall undergo strict approval procedures and acquire data according to the requirements of the law when they need to acquire data to maintain national security or investigate crimes. The above stipulations have clearly reflected the principle of constitutionality. Article 1 of the Personal Information Protection Law of the People’s Republic of China implemented as of November 1, 2021 explicitly stipulates: “This Law is enacted in accordance with the Constitution to protect personal information rights and interests, regulate the processing of personal information and promote the reasonable use of personal information.” The expression of “this law is enacted in accordance with the Constitution” makes it clear that the legislative action of the state should follow the requirement of the principle of constitutionality. The legislative obligation that the state fulfills to protect personal data should focus on whether data are processed and used for a legitimate purpose, the purpose of data processing and use should be specific and definite, the data processing and use should be implemented in the expected manner. The means adopted by the people processing and using data should be matched to the quality, extent and scope of the losses that data processing and use bring citizens. On condition that the purpose of data processing and use can be achieved, data processors and users should minimize the damage to the rights of citizens. Meanwhile, the infringement of the rights of citizens caused by data processing and use when data processors and users achieve the purpose of data processing and use shall not exceed the benefits gained after the purpose of data processing and use is achieved. 

 

Second, the Constitution stipulates that “the state shall respect and protect human rights,” which is an essential principle of state governance. According to the principle, the legislative body should establish a multi-layer legal norm system taking the right to the protection of personal data as the center. As a result, the right to the protection of personal data will be approved and protected by the state. “The right of a natural person to personal data is a fundamental human right, and the personal data protection has a constitutional significance. Personal data protection has priority over economic benefit protection.”⁵⁹As previously mentioned, the institutional guarantee theory is mainly to restrain the legislator and prevent the legislator from destroying the legal order of the state by legislating. The basic approach by which the legislative body bears the institutional guarantee for the right to the protection of personal data is to establish a legal system related to the right to the protection of personal data through the legislation of the state so that the human dignity value and the digital society citizenship can be achieved. At present, the National People’s Congress and its standing committee have successively enacted the Cybersecurity Law of the People’s Republic of China, the E-commerce Law, the Civil Code, the Data Security Law and the Personal Data Protection Law focusing on the right to the protection of personal data, regulated the right by regulating the collection, storage, use, processing, transfer, supply, disclosure, etc. of data and ensured that personal data are being effectively protected and legally used. Some local legislators have enacted some laws related to personal data. The Shenzhen Special Economic Zone Data Regulations adopted on June 29, 2021 by the Standing Committee of the Shenzhen Municipal People’s Congress is China’s first local legislation that has been specially and explicitly drawn up for personal data. Article 10 of Shenzhen Special Economic Zone Data Regulations stipulates that: “Personal data processing shall meet the following requirements: (1) The purpose of processing personal data is definite and reasonable, and the mode is legitimate and rightful. (2) The scope related to personal data processing shall be as small as possible. The processing mode having the least effect on personal rights and interest shall be adopted on condition that the purpose of the data processing can be achieved. (3) The types, scopes, purposes, modes, etc. of the data processing shall be reported according to law, and they shall be approved according to law. (4) Accuracy and necessary integrity of personal data shall be guaranteed lest the inaccuracy or incompleteness of the personal data causes damage to people related to the data. (5) The security of personal data shall be guaranteed, and personal data shall be prevented from being leaked, damaged, lost, tampered or illegally used.” Article 10 of the Shanghai Data Regulations adopted on November 25, 2021 by the Standing Committee of the Shanghai Municipal People’s Congress stipulates: “Natural persons, legal persons and unincorporated organizations collect data by using a legitimate and valid method. Collecting disclosed data shall not break provisions of the relevant laws, administrative laws and regulations or infringe other people’s lawful rights and interests. If relevant laws and administrative laws and regulations have stipulated the purposes and scopes of data collecting, data shall be collected according to the purposes and scopes.” Article 17 of the Shanghai Data Regulations stipulates: “When natural persons, legal persons and unincorporated organizations collect data and exercise the rights related to the data, they shall abide by relevant laws and regulations, respect social morality and ethics, comply with commercial morality and be honest and trustworthy, shall endanger neither the national security nor the public interests, and shall not harm other people’s lawful rights and interests.” The above provisions have important values for regulating personal data processing activities, preventing the right to personal data from being infringed and maintaining the legitimate rights of personal data subjects. They will have important reference to China’s further improvement of the legal system for the right to the protection of personal data in the future. 

 

Finally, the institutional guarantee system and mechanism for the right to the protection of personal data shall be constantly improved by using the constitutional interpretation mode. It should be clarified that “we must make a judgment on how to understand constitutional principles best if we want to interpret the constitution faithfully… The interpretation of the constitution should make the constitution be best applied.”⁶⁰ To promote the application of the constitution and facilitate the implementation of the right to the protection of personal data through the interpretation of the constitution, we must interpret and expound civil rights from the angle of moral philosophy based on fully understanding the constitutional spirit and principles. For example, the right to the protection of personal data was generated in Germany through the interpretation of the 1983 Census Act and the German Federal Court of Justice thought that the right to personal data was the specific embodiment of “the general personality right (Das Allgemeine Persoenlichkeitsrecht) derived from “the right to personal information self-determination” (Recht auf informationelle Selbstbestimung) according to the provision of Article 1, “Human dignity is inviolable. To respect and protect the dignity is the obligation of all the state organs” and the provisions of Article 2, “Every person has the right to free development of his or her personality, but the right shall neither infringe upon other people’s rights nor violate the constitutional order or moral norms” of the Basic Law for the Federal Republic of Germany.⁶¹ It is well known that an authority must expound and interpret the constitution if the principles and spirit of the constitution need to be accurately grasped because of the abstractness and openness of the words used in the constitution. Therefore, the value of the constitutional interpretation system is to maintain the certainty of constitutional norms and to enable the constitutional norms to accurately and effectively play a guiding role in the regulation of behavior in actual life.⁶² Multiple values have brought the temptation of pragmatism in the rule of law. Multiple practices have triggered the decline of the rule of law integration capability, especially in China’s current comprehensive deep reform process. It is necessary to establish a constitutionality control mechanism taking the constitutional interpretation as the core.⁶³According to the provisions of Article 67 of the current Constitution of the People’s Republic of China, the Standing Committee of the National People’s Congress exercises the power of the constitutional interpretation. This means that the standing organ of the organization of supreme power with lawmaking functions fulfills the function of constitutional interpretation. Since the constitution has endowed only the Standing Committee of the National People’s Congress with the power of the constitutional interpretation, no other state organs, organizations or individuals have the authority to give any constitutional interpretation with legal force. Even if some other state organs have to interpret the Constitution in the implementation process of the Constitution because they are responsible for the implementation of the Constitution, their interpretation must be subject to the interpretation of the Standing Committee of the National People’s Congress. Furthermore, to give full play to the institutional function of the constitutional interpretation helps establish the authority of the Standing Committee of the National People’s Congress as a constitutional interpretation organ, strike a balance between personal data protection and the public interests, promote the opening, flow, development and use of data as a production element and accelerate the construction of the digital economy, digital society and digital government. Therefore, when the legal system related to the right to the protection of personal data is established, full play should be given to the constitutional interpretation function of the Standing Committee of the National People’s Congress so as to achieve the goal of maintaining national security, public interests and legitimate personal rights, and build, develop and improve the differentiated data protection law system and mechanism. 

 

 

In the current big data era, “A state can have an abundant source of power and the most reliable guarantee at home and abroad only when every person of the state has strong, sound legal sentiment. Legal sentiment is to law what the roots of a big tree are to the tree. Legal sentiment acts like the roots of a big tree. If the roots do not work, the big tree will wither among the rocks. Once a rainstorm occurs, the tree will be uprooted.”⁶⁴ The right to the protection of personal data is important as it represents “the roots” for the development of the digital economy, and the Constitution should protect it. Meanwhile, the integration and coordination among all the department rules for personal data protection in the digital society can be achieved, and the harmony, all-win, mutual benefit and cooperation among the multiple subjects can be achieved only when the Constitution protects the right to the protection of personal data. “Perhaps the most important thing is that a republic, or at least a heterogeneous republic, needs to have a ‘stage’ where citizens of the republic with various experiences, visions and different viewpoints about what is right or wrong can meet and jointly discuss.”⁶⁵ The standardized development, opening, sharing and supervision of big data can be achieved and the institutionalized data ownership and use right, and the benefit distribution mechanism can be gradually established only by doing so under a legal data framework guided by the Constitution. 

 

(Translated by LIU Zhao)

 

* DAI Jitao ( 戴激涛 ), Researcher of Human Rights Research Institute and Professor of Law School, Guangdong University of Finance and Economics. This paper is an interim achievement of the provincial key academic project Research of the Grassroots Negotiation and Governance Modernization Viewing from the Angle of State Governance (2019-GDXK-0005).

 

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5. Chen Xinmin, Commentaries on Constitutional Jurisprudence (8th revision) (Taiwan: San Min Book, 2015), 4.

 

6. The representative works of Chinese scholars analyzing the right to personal data at the constitutional level. Ji Weidong, “Data, Privacy and Constitutional Innovation in the AI Era”, Law of Nanjing University 1 (2020); Wang Xixin, “The Obligation of the State to Protect Personal Information and Its Expansion”, China Legal Science 1 (2021); Zhou Sijia, “Constitutional Analyses of the Right to Personal Data”, Journal of Chongqing University (Social Sciences Edition), 1 (2021); Wang Xixin and Peng Chun, “Constitutional Basis of Personal Information Protection Law System”, Tsinghua University Law Journal 3 (2021) etc..

 

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41. Luke Dormehl, Algorithm Era: New Engine of New Economy, trans. Hu Xiaorui, et al. (Beijing: CITIC Press, 2016), 136. 

 

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44. TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001), 25.

 

45. He Yuan, Data Law (Beijing: Peking University Press, 2020), 7. Some scholars have carried out some statistics. They have found that 26 current effective constitutions can be found by using “personal data” as the key words and carrying out full-text search in the comparative constitution project database (www.constituteproject.org). Wang Xixin and Peng Chun, “Constitutional Basis for Personal Information Protection Law Systems”, Tsinghua Law 3 (2021): 12. 

 

46. Due to the limitation of the paper size, only the provisions on the right to the protection of personal data specified in the constitutions of some representative countries are listed in the table. As for the source, see the Editorial Board of Constitutions of Various Countries, Constitutions of Various Countries (Beijing: China Procuratorial Press, 2012); searching overseas laws and regulations at Global Law and Regulation Website of the Ministry of Commerce. 

 

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50. As for the related papers, Liu Lianjun, “The Civil Code Should Include an Institutional Guarantee for Families”, Law and Social Development 2(2018); Cheng Naisheng, “On the Institutional Guarantee for the Fundamental Rights of Citizens — Start with the ‘Institutional Guarantee’ of Karl Schmitt”, Social Scientist 1 (2015); Lin Laifen, “Ownership Specified in the Constitution Needs an Institutional Guarantee”, Chinese Journal of Law 4 (2013); Ren Xirong, “‘Social Constitution’ and Its Institutional Guarantee Function”, Law Review 1 (2013); Ou Aimin, “Constitutional Analysis of the Crime of Gathered Prurience — Viewing from the Angle of the Institutional Guarantee Theory”, Studies in Law and Business 1 (2011) etc.. 

 

51. Xu Zhixiong, “Institutional Guarantee”, in Yuedan Law Classroom (3) Public Law (Taipei: Taipei Yuanzhao Publishing, 2002), 78. 

 

52. Michael Sachs, Verfassungsrecht//Grundrechte, Berlin u. a. Springer, 2000, S.49.ff. quoted from Zhang Xiang, Standard Establishment of the Fundamental Rights (Beijing: Higher Education Press, 2008), 114. 

 

53. Wu Yuzong, “Institutional Guarantee”, in Yuedan Law Classroom 10 (2003): 39; Li Jianliang, “Origin of the Institutional Guarantee Theory”, in Public Law and Political Theory, ed. the Editorial Board of the Collected Papers of Emeritus Judge Wu Geng (Taipei: Yuanzhao Publishing, 2004), 263-264. 

 

54. Xu Zongli, Constitution and Administration of the State with an Adequate Legal System (Taipei: Taipei Yuanzhao Publishing, 2007), 204. 

 

55. Yeung Karen, “Five Fears about Mass Predictive Personalisation in an Age of Surveillance Capitalism”, 8 International Data Privacy Law 3 (2018): 269.

 

56. Na Yanhua, “Change and Modern Value of Constitutional Theory with the Institutional Guarantee”, Northern Legal Science 2 (2016): 143. 

 

57. Li Huizong, Main Ideas of the Constitution (Taipei: Taipei Yuanzhao Publishing, 2006), 119. 

 

58. Tu Yunxin, Outline of Economic, Social and Cultural Rights (Beijing: China Legal Publishing House, 2020), 252.

 

59. Guo Yu, Research of the Personal Data Protection Law (Beijing: Peking University Press, 2021), 49. 

 

60. Sotirios Barber and James E. Fleming, Constitutional Interpretation: The Basic Questions, trans. Xu Shuang and Huan Shengkui (Beijing: Peking University Press, 2016), 125. 

 

61. Xie Yuanyang, Privacy Protection of Personal Information (Beijing: China Legal Publishing House, 2016), 91-121. 

 

62. Mo Jihong, “Substantive Constitutional Interpretation from the Theoretical Perspective of Legal Fact”, Chinese Journal of Law 6 (2021): 3-18. 

 

63. Wang Xu, “Theoretic Logic of the Proposition ‘the Rule of Law in China’ and Its Expansion”, China Legal Science 1 (2016). 

 

64. Rudolph von Jhering, The Struggle for Law, trans. Liu Quan (Beijing: Law Press China, 2019), 49. 

 

65. Cass R. Sunstein, Too Much Information: On Warnings, Labels, and Enjoying Life, trans. Chen Xin and Sun Jingchao (Beijing: China Democracy and Rule of Law Press, 2021), 332.