Reconstructing the Framework for Determining and Compensating Dual Risk-Based Damage to Personal Information

WANG Xue

Abstract: In the era of big data, the dual risk-based damage associated with personal information leakage presents unique challenges. The unrealistic nature of objective risk-based damage without benchmarks and the high threshold for determining subjective risk-based damage have become obstacles for information subjects seeking compensation. Traditional approaches to supporting risk-based damage are inadequate in the realm of personal information. The theoretical support and compensation mechanisms for dual risk-based damage to personal information need re-exploration. The information subject’s control over the value of personal information assets based on the right to know forms the theoretical basis for objective risk-based damage. Additionally, the independence of mental suffering and the relaxation of the “serious” standard allow for a broader interpretation of subjective risk-based damage. In addressing claims by information subjects, first, courts need to assess and quantify the level of risk-based damage; second, legislation should introduce a statutory compensation system to define the range of personal information asset value, with a focus on the fault of personal information processors in civil liability; finally, establishing a special representative litigation mechanism can effectively address collective disputes over personal information infringement and alleviate the litigation burden on information subjects.

Keywords: information subjects · personal information processors · objective risk-based damage · subjective risk-based damage · right to know