Public or Privacy? Dual Process Theory and Fair Use of Disclosed Personal Information in Chinese Judgments
Created on:2024-01-03 20:03 PV:642
By Lou Chanhou | Article | 16 Tsinghua China L. Rev. 51 (2023)   |   Download Full Article PDF


Current academic discourse in China predominantly centers on the fair use of personal information within the frameworks of either the Civil Code or the Personal Information Protection Law (PIPL), often overlooking the coordination challenges that arise between these two legislative instruments. Such an oversight complicates the statutory interpretation of contentious matters such as "fair use" versus "post-hoc refusal" concerning disclosed personal information. This gap in understanding is evident in judicial divergences observed in cases involving the secondary publication of judgments, such as the Yi Case and the Liang Case. To address this lacuna, this paper proposes the integration of cognitive science's "Dual Process Theory" into legal studies. The theory provides a nuanced understanding of how various actors—including judges, platforms, users, and information subjects, as well as the legal frameworks of the Civil Code and the PIPL—contribute to shaping a network focused on the fair use of disclosed personal information. The paper posits that while "fast fair use" under the PIPL can counter "post-hoc refusal," "slow fair use" under the Civil Code cannot. Through the cognitive node and the judicial "Four Factors," the actors interact and construct their own roles in this network. The Dual Process Theory offers an empirical lens to understand behavioral preferences in the secondary publication of personal information, such as the trend of excessive deletion of personal information from judgments, and allows for the refinement of intermediary factors to create a positive feedback mechanism.

Keywords: Personal Information, Fair Use, Dual Process Theory, Public Disclosure of Judgments