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Abstract
Big data governance has emerged as an important area of focus in recent times. In this article, we study the state of big data governance in China, discuss the balance of interests in big data, and seek to develop the theory of big data governance in law. In the past years, some academic achievements have been made in big data governance theories, personal data protection, and data property rights protection based on existing research related to big data governance. However, conflicts of interest in big data have been under-studied and under-analyzed. In this article, we conduct an in-depth study of the state of big data governance in China and develop a theoretical framework for constructing multi-subject governance based on the interest balancing approach, including the allocation of personal data rights and the rights of a data controller, to resolve the conflicts of interests in big data governance in the areas of private law, public law, and industry self-governance.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 The author is Viktor Mayer-Schönberger, professor at Oxford University in the United Kingdom.
2 A large number of such projects can be found from the following two websites: https://isisn.nsfc.gov.cn/egrantweb/; http://www.nopss.gov.cn
4 http://www.cbdio.com/BigData/2019-10/06/content_6152018.htm (accessed July 8, 2021)
6 www.dianping.com is a service software created by Shanghai Hantao Information Consulting Co., Ltd., whose main function is to provide its users with services such as business information and consumer evaluation. Since 2012, Baidu Map and Baidu Knows, operated by Beijing Baidu Netcom Science and Technology Co., Ltd., have provided users with information that belong to www.dianping.com without permission to generate economic benefits, enabling Baidu to quickly acquire a large number of users and a large amount of traffic. The interests of www.dianping.com were severely hurt, such as loss of users, loss of relative competitive advantages, and reduced trading opportunities. In 2015, Hantao filed a lawsuit in court. In 2016, the court of first instance ruled that Baidu's actions constituted unfair competition. Afterwards, Baidu filed an appeal, but the court of second instance did not support Baidu's claims. See “Shanghai Intellectual Property Court (2016) H73MZ No.242 Civil Judgment.”
7 On June 1, 2017, a data war began between Cainiao and SF Express. Data transmission was finally resumed on June 3, 2017, under the coordination of the State Post Bureau.
8 https://www.cesafe.com/6218.html (accessed July 8, 2021)
10 On February 2, 2021, Douyin filed a complaint with the Beijing Intellectual Property Court, arguing that Tencent’s WeChat and QQ restrict users from sharing content from Douyin, constituting an “abuse of dominant market position to eliminate or restrict competition” prohibited by the Anti-Monopoly Law, and asking the court to order Tencent to immediately stop such practices and compensate Douyin for economic losses and reasonable expenses of RMB 90 million.
11 Rubintstein and Ira, “Big Data: The End of Privacy or a New Beginning.”
12 Erkut, “From Digital Government to Digital Governance,” 860.
13 Admati and Pfleiderer, “Viable Allocations of Information in Financial Markets,” 76–115.
14 Bebchuk et al., “The Long-Term Effects of Hedge Fund Activism,” 1085–1155.
15 Bertot and Choi, “Big Data and E-Government,” 1.
16 Yablonsky, “Big Data Governance Framework.”
17 Gustafson and Hertting, “Understanding Participatory Governance,” 538–549; Ruan and Li, “The Idea of Governance,” 679–682.
18 Jiang and Changmao, “National Governance Quotient,” 25–40.
19 Tarantola, “Global Health and National Governance,” 8.
20 Guo, “Research on the Governance of China,” 48-61; Schmitter, “Defining, Explaining and Then,” 547–567; Yang, “The Paradigm Shift of Political Science from Being.”
21 Spitzeck and Hansen, “Stakeholder Governance,” 378–379.
22 Guo, “Research on the Governance of China,” 48-61.
23 Hasan, “Freedom of Information Update,” 30–32.
24 Jay and Hamilton, Data Protection Law and Practice.
25 Guo and Jianping, “Research on National Governance,” 73–76; Zhang et al., “The Construction of the Evaluation Index System,” 28–32.
26 Zhou, “Exploring Incentive-Compatible Personal Data Governance,” 3–23.
27 Tang, “Personal Data and Privacy Protection in Cyberspace,” 10–14.
28 Wang and Limei, “On the Legal Protection of Personal Privacy,” 71–78.
29 Zhou, “Exploring Incentive-Compatible Personal Data Governance,” 3–23.
30 Kronke, “Data Regulation in the Internet of Things,” 367–379; Wang and Fuping, “Research on the Property Attributes of Big Data,” 35–43.
31 Hu, “Data Property Rights from the Perspective,” 1–14.
32 Yu, “The Legislative Compliance of the Right,” 22–31.
33 Harison, “Who Owns Enterprise Information,” 102–108.
34 Yu and Zhao, “Dualism in Data Protection,” 105318.
35 Lancieri, “Digital Protectionism? Antitrust, Data Protection,” 27–53; Spiekermann and Novotny, “A Vision for Global Privacy Bridges, 181–200.”
36 An, “Reviewing the Administrative Law by Interests Balance,” 181–220.
37 Spencer and Kapitan, “Balancing Self/Collective-Interest,” 528–549.
38 Perez Luno, “Rudolf Von Jhering and the Positivist Paradigm,” 149–154.
39 Lasser, “Comparative Readings of Roscoe Pound's Jurisprudence,” 719–751.
40 Philipp Heck and Karl Larenz both acknowledged that the essence of the balance of interests’ theory is to resolve conflicts. Heck believed that the utmost task of law is to balance interests; Larenz believed that after conflicts of rights, to rebuild the legal order, it is necessary for a right to make concessions to another, or both rights to make certain concessions to achieve balance.
41 Rawls, Translated by He Huaihong, He Baogang.
42 This definition is derived from the GDPR (General Data Protection Regulation, 2018), which can be found in Chapter 3 Rights of the data subject in GDPR.
43 Guo, “Conceptualization and Measurement of Global Justice,” 47–59.
44 https://www.pkulaw.com (accessed July 30, 2021)
45 Syroid et al., “The Personal Data Protection Mechanism,” 113–120.
46 Skendzic et al., “General Data Protection Regulation,” 1370–1375.
47 SangChan and Jaejung, “Online Marketing and Protection of Personal Data,” 97–126.
48 Cradock et al., “Nobody Puts Data in a Corner,” 142–158.
49 Bincoletto, “A Data Protection by Design Model,” 161–181.
50 Risk control refers to the risk manager taking various measures and methods to eliminate or reduce the possibility of risk events, or to reduce the loss caused in the occurrence of risk events.
51 It is an integral part of modern economics, mainly studying the decision issues of profit volume, profit share and profit margin in manufacturers, industry and even the whole economy.
52 It is the theory corresponding to the market economy. Cost is primarily the price that must be paid in order to obtain some gain.
53 Amsler, “Collaborative Governance,” 700–711.
54 An APP in China.
55 However, in the development stage where the government is laissez-faire, the “illegal rise” has led to the formation of illegal markets for personal information and chaos. No legal regulations are in place for data collection, circulation, transaction, and application. Insiders, hackers, cleaners, processors, etc. depend on these illegal websites for private information to make a living, resulting in large-scale illegal markets for data. Everyone is drawn into the whirlpool of illegal markets without choice, and becomes “transparent people” with no privacy, trapped in a huge “black box society.”
56 Cheng and Mingda, “Discussion on the Government and Market Relations,” 185–192.
57 Hoofnagle et al., “The European Union General Data Protection Regulation,” 65–98.
58 Hoofnagle, “Assessing the Federal Trade Commission's Privacy Assessments,” 58–64.
59 Citizens, legal persons, or other organizations that believe the administrative actions of administrative agencies and the staff infringe their lawful rights and interests have the right to bring an administrative lawsuit to the people’s court. When a citizen’s personal information is infringed upon by an administrative agency or its staff, he/she has the right to initiate an administrative lawsuit.
60 Levinson, “Embedded Deception,” 2007–2053.
61 Smith and Gilbert, “Privacy and Fair Credit Reporting Act Update,” 585–595.
62 Kim, “Equality of Immigrants in Credit Transaction,” 183–222.
63 Lee and Nam, “A Study on the Protection of Personal Data,” 12–15.
64 Voss and Houser, “Personal Data and the GDPR,” 287–344.
65 Tsui and Hargreaves, “Who Decides What is Personal Data,” 1684–1698.
66 Stoker, “Embracing Complexity,” 91–107.
67 Big data, intelligence, mobile internet, and cloud computing have become important forces driving economic development and social transformation. “Talking, decision-making, management, and innovation based on data” have become an important principle of public management and national governance.
68 Gao and Yu, “Public Governance Mechanism in the Prevention,” 178–197.
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Xiaolan Yu
Xiaolan Yu is a professor at Anhui Normal University, and a supervising professor of candidates for master degree. She received her doctoral degree of Law from the Fudan University Law School and is a postdoctoral fellow at KOGUAN School of Law at Shanghai Jiao Tong University. Her research area includes legal governance of data.