A consumer in Deyang, Sichuan Province was asked to scan the code when eating in a hot pot restaurant. The consumer believed that the information obtained by the restaurant, such as mobile phone number, birthday, name and address book, had nothing to do with catering consumption and infringed his personal information, so he sued the court. After hearing the case, the court ruled that the restaurant should stop infringement. After the case was disclosed by the media, it attracted public attention.
In reality, the experience of consumers in the case is very common. Many restaurants promote code scanning, ordering and checkout, which does provide convenience for consumers, but on the other hand, many people are not aware that their personal information may be at risk.
01
How to identify personal information
The consumers in the above cases believe that the store's collection of relevant information is neither legal, nor legitimate, nor necessary, and infringes on personal information.
Hotpot stores believe that wechat avatars, nicknames, regions and gender belong to online pseudonyms, and there is no risk of infringing personal information.
After hearing, the court held that it was not necessary for consumers to provide information unrelated to catering consumption, such as mobile phone number, birthday, name, geographical location and address book. Hotpot restaurant violated the legal provisions of the principles of legality, legitimacy and necessity of collecting and using personal information, and violated Luo's personal information.
The court ruled that the restaurant stopped infringement and deleted and obtained the consumer's personal information within 10 days from the effective date of the judgment.
Code scanning ordering has been very popular, but the heads of several restaurants said they did not understand the problem of "whether it is illegal for small programs to collect consumer wechat information".
"Now is the epidemic period. In fact, many consumers are not willing to contact waiters," Wang Bo, the owner of a restaurant in Qingdao, Shandong, told Caijing e law. "If we can't even collect this information (wechat name), it's difficult for us to provide more convenient services for consumers."
This view is not unique to Wang Bo alone. A number of restaurant principals interviewed believe that it is difficult to equate the relevant network information such as wechat with the protected "personal privacy" or "personal information".
This perception of the people in charge of the restaurant stems from their lack of understanding of relevant laws.
Article 4 of the personal information protection law (hereinafter referred to as the "personal information protection law") stipulates that personal information is all kinds of information related to identified or identifiable natural persons recorded electronically or otherwise, excluding the information after anonymization.
The Civil Code stipulates that personal information is a variety of information recorded electronically or otherwise that can identify a specific natural person alone or in combination with other information, including the natural person's name, date of birth, ID number, biometric information, address, telephone number, e-mail, health information, whereabouts information, etc.
So, how to determine whether it is infringement when it comes to the "code scanning and ordering"?
Wang Xinrui, a partner of Shihui law firm, believes that the scope of personal information is very wide according to the relevant provisions of the personal insurance law, and its core is whether to identify or associate with individuals.
He specifically introduced that a separate wechat avatar, nickname, region and gender are not unique to natural persons and cannot be directly identified or associated with individuals. However, if businesses collect information that can identify individuals such as consumers' mobile phone numbers and unique device numbers at the same time, it belongs to personal information through the relationship between these information and the identified natural persons.
Liu Quan, executive director of the digital economy and rule of law research center of the school of law of the Central University of Finance and economics, added that if the regional information extracted by scanning the code and ordering meals can judge the whereabouts of consumers, it is more sensitive personal information.
Gao Yandong, a researcher at Zhejiang Institute of public policy, stressed that "digital identity information already belonging to natural persons", such as wechat, e-mail and Taobao account, which have been used for a long time and are difficult to modify, are similar to electronic identity cards, which can easily identify natural persons and belong to personal information that should be protected.
02
Why do restaurants like to scan codes
A number of persons in charge of the interviewed restaurants said that the restaurants are happy to order with small programs. In fact, they "take into account the cost and profitability", and the most important thing is to save labor costs.
Wang Bo said that his restaurant is located in the center of Shinan District of Qingdao, with a large flow of people on weekends. At present, there are 11 waiters. The superior supervisor of the restaurant once calculated that if the code scanning ordering procedure is not used, the number of waiters will increase to 14.
"The salary of a waiter is almost 4000 yuan. If you add three people, you will spend 144000 yuan more a year." Wang Bo said.
In addition, a considerable number of restaurants require consumers to pay attention to their official account or registration applet when they scan the code to order. In this way, businesses can push promotional information for consumers.
According to wangyizhong, the person in charge of a chain restaurant in Zhengzhou, the re consumption guided by the coupon can increase the net profit by 20000-30000 yuan per year, and also save a considerable amount of advertising expenses. "Many advertisements are sent by wechat official account".
In addition, code scanning and ordering can also save sporadic costs such as menu printing, which is also a considerable cost (about 20000-30000 yuan per year on average).
Once the accounts are calculated, it is not difficult to understand why some restaurants are keen to promote code scanning and ordering.
Many consumers interviewed had the same experience. Because they were unwilling to accept the way of scanning the code to order, they asked for a paper menu from the restaurant, but they were rejected by the other party on the grounds of "no paper menu".
Scholars made it clear that this practice violates the law.
According to the law on the protection of consumers' rights and interests, consumers enjoy the right to fair trade and the right to choose goods or services independently.
Gao Yandong pointed out that the restaurant's refusal to provide paper menus has damaged consumers' right to fair trade and the right to know. In addition, this behavior has the tendency to force consumers to authorize the collection of personal information, and consumers naturally have the right to refuse.
Liu Quan pointed out that it is illegal for the restaurant to ask to scan the code and order. Article 16 of the personal security law clearly stipulates that personal information processors shall not refuse to provide products or services on the grounds that individuals do not agree to process their personal information or withdraw their consent; The processing of personal information is necessary for the provision of products or services.
"Consumers have the right to refuse to order meals by scanning the code, which is not necessary for the provision of products or services. At the same time, restaurants shall not refuse to provide services on the grounds that consumers do not agree to order meals by scanning the code." Liu Quan said.
03
What are the boundaries for collecting information
Wechat also found real problems and announced on May 2 that some applet developers unreasonably asked users to authorize the provision of mobile phone numbers and other personal information, interrupting the normal use process, affecting users' use experience and bringing the risk of personal privacy information disclosure. This behavior violates the requirements of user privacy and data in the platform operation specifications.
Wechat suggested that in order to protect user information and ensure a good user experience, "please do not force the user to authorize the mobile phone number unnecessarily; after the user refuses authorization, it is not allowed to frequently ask the user and call the mobile phone number authorization interface every time the user reopens the applet."
If it is found that the applet collects the user's personal information irrelevant to the service by limiting the user's operation, the platform will limit the ability of mobile phone number authorization according to the degree of violation.
As a function often used in daily life, some small programs developed by businesses do face many infringement risks when collecting personal information.
Gao Yandong pointed out that China's protection of personal information is based on the "theory of suprapersonal legal interests", that is, protecting personal information from the perspective of social order and network security, rather than just protecting personal rights, because personal information involves a series of issues such as transaction security and network order. Even if an individual authorizes the information processor to process his personal information, he cannot violate the public information security and social public interests, otherwise he will be punished accordingly.
Gao Yandong concluded that in many business environments, businesses often force consumers to authorize the above information. Without authorization, they cannot consume, and the information collected is unnecessary information, which belongs to excessive collection. At the same time, the behavior of collecting personal information lacks legitimate purposes. For example, the purpose of collecting personal information is to classify and screen consumers, form accurate user portraits, and then implement precision marketing or "big data ripening". Obviously, in this case, even with personal authorization, the behavior of businesses collecting information exceeds the reasonable scope and necessary limit, or the purpose is not legitimate enough, in violation of personal security law and other laws.
But in practice, how should restaurants avoid the risk of infringement?
Liu Quan believes that if the personal information collected by the restaurant is not directly related to catering services, or does not take the way that has the least impact on personal rights and interests, or is not limited to the minimum range of processing purposes, it is suspected of excessive collection of consumer personal information.
Liu Quan also reminded that the collection of personal information needs to abide by the basic principles of law, that is, the principles of legality, legitimacy and necessity.
Liu Quan suggested that when providing code scanning ordering service, the restaurant should truthfully, accurately and completely inform consumers of the purpose and method of collecting and processing personal information, the type of personal information collected, the storage period and other matters in a prominent position and clear and understandable language, and obtain their consent. If it involves the collection and processing of biometrics, financial accounts, whereabouts and other sensitive personal information, it shall also provide proof of the necessity of collection and the impact on personal rights and interests.
Liu Quan specifically pointed out that the retention period of personal information should be the shortest time necessary to complete the processing purpose. For example, when the catering service has been realized or ended, you should take the initiative to delete your personal information in time.
Wang Xinrui's view is more direct. In the code scanning ordering scene, the restaurant should only collect data related to dining, such as table number, dishes ordered, number of diners, etc., and avoid collecting other personal information unrelated to ordering or dining service. In addition, if the consumer refuses to scan the code for ordering, other ordering methods shall be provided, and the consumer shall not be forced to scan the code for ordering, or refuse to provide dining services because the consumer does not scan the code for ordering.