中文判例翻译｜儿童个人信息的司法保护——杭州市余杭区人民检察院诉某短视频平台未成年人保护民事公益诉讼案

译者｜孙书朋 西南政法大学硕士

一审｜张亦衡 南加州大学本科

二审｜曾梓栩 外交学院法本

编辑｜杨玟萱 中南财经政法大学本科

         李建云 湖南师范大学法学院本科

责编｜戚琳颖 大连海事大学本科

People’s Procuratorate of Yuhang District of Hangzhou (Plaintiff) v a Short Video Platform (Defendant)

杭州市余杭区人民检察院诉某短视频平台

When dealing with the criminal case involving an child-molesting case against an individual surnamed Xu, the public interest procurators found out that the short video app operated by a tech company infringed on a large number of unspecified children’s personal information. Specifically the app

a.allowed registering child accounts, and collecting and storing children’s online IDs, geolocations, and contact information as well as such children’s sensitive information including identifying facial and voice features without prominently and clearly notifying children’s custodians and obtaining their valid express consent;

b.directly pushed short videos containing children’s personal information to the users with the preference for videos featuring children through background algorithms without obtaining the valid express consent of children’s custodians again;

c.failed to adopt a distinct management policy for underage users by allowing users by default to send private messages to underage user accounts and access such personal information including their geolocations and facial features after clicking the button “Follow”.

The public interest procurators filed a civil public interest litigation, contending that the above acts by the tech company infringed social public interests. With the mediation of the court, the public interest procurators entered into a mediation agreement with the tech company. The tech company has performed the agreement.

（图片来源于网络）

Hangzhou Internet Court rendered a civil mediation paper (No. 10993 [2020], First, Civil Division, HIC, Hangzhou) which specifies that

a.the Defendant shall cease to infringe on children’s personal information by rectifying the online platform of the short video app in accordance with Civil Code of the People’s Republic of China, Minor Protection Act of the People’s Republic of China (come into force on 1 June 2021), Cybersecurity Act of the People’s Republic of China, and Regulations on the Cyber Protection for Children’s Personal Information. The Defendant undertakes to address the issues involved in this case as per the mutually confirmed rectification plan for regulatory compliance and timetable (the specific contents thereof shall be subject to the annexes);

b.the Defendant shall assess the implementation and outcome of the rectification and file a detailed report on the implementation of the rectification with the public interest procurators  and the people’s court;

c.the Defendant shall voluntarily be subject to the compliance review by submitting the report on the rectification plan and its implementation to the Cyberspace Administration in accordance with relevant regulations;

d.the Defendant shall make the amende honorable for the infringement in question in the prominent section of Legal Daily and on the official account of the short video app;

e.the Defendant undertakes to strictly comply with the laws and regulations on children’s personal information protection, and voluntarily be subject to the supervision and inspection of administrative regulatory authorities including the Cyberspace Administration;

f.the Defendant shall pay 1.5 million yuan to compensate for the social public interest loss caused by the infringement within 7 workdays of the date on which the mediation agreement comes into force. The compensation shall be paid to the relevant children’s public interest protection organizations to be dedicated to public interests including children’s personal information protection.

1.If internet platforms (information processors) providing network service targeting children lack separate Children’s Personal Information/ Privacy Protection Policy and Individual Child User Agreement and fail to take reasonable measures to notify custodians and obtain their valid express consent, the processing of underage users’ personal information such as geolocations, contact, facial, limbs, and voice information by these platforms shall be deemed as unlawful.

（图片来源于网络）

2.The failure of information processors to establish special protection pools and adopt encrypted storage for children’s personal information, which falls within the category of sensitive personal information, constitutes unlawful storage of children’s personal information.

3.If the separate consent of children’s custodians fails to be obtained, pushing short videos containing children’s personal information to other users through algorithm-based automated decision-making shall be deemed as unlawful processing of children’s personal information.

4.Turning on personalized recommendations without the consent of custodians and pushing contents to children by profiling underage users shall be deemed as unlawful processing of children’s personal information.

5.Prior to obtaining the consent of custodians, the failure of information processors to compulsorily

a.limit strangers in following undergae users;

b.conceal the geolocations of underage users;

c.set limits on sending private messages to underage users;

d.prohibit the recommendation of contacts to underage users;

e.ban the search for underage users through mobile phone numbers;

f.switch off the “Circle of Acquaintance” feature;

g.prohibit showing the “moments” feature of children;

h.prohibit recommending underage users to potential followers; and

i.prohibit showing videos created by children who are in the same city as viewers constitutes failure to fulfill the obligations of protecting the privacy of underage users.

6.The infringement of personal information interests of unspecified underage users by information processors shall be deemed as the infringement of the social public interests of unspecified minors.