[author]CHEN Jinbo

[content]

From Private Law to Public law: the Extension of Privacy Protection Mode in Digital Age

CHEN Jinbo

Abstract: With the advent of the digital era, the government has become the largest subject of collecting and using citizen information, and the risk of citizens' privacy being infringed on by public power is increasing. Therefore, the public-law protection mode of the right of privacy is gradually presented and highlighted. The essence of the public-law protection of the right of privacy is to require the state to make a necessary balance between the social public interests and the citizens' individual interest in privacy. Such balance needs to be carried out in three dimensions, namely the hierarchy of the right privacy, the value orientation of citizens' private information, and the identity of citizens, because these three dimensions jointly determine to what extent individual interests in privacy should give way to social public interests. On the basis of distinguishing and considering the above three dimensions, it is advisable to set up such four different modes of public-law protection of citizen's right of privacy as absolute public-law protection mode, strict public-law protection mode, general public-law protection mode and weak public-law protection mode.

Keywords: Right of Privacy; Personal Information; Private Information; Social Public Interests;Individual Interests in Privacy; Public-law Protection Mode

1.Presentation of the issue

All civilized societies focus on the protection of personal privacy. The need to protect privacy stems from the human instinct of shame and is a natural human emotion. The relationship between personal privacy and personal information is still understood differently by academics, but from the provisions of the Civil Code of the People's Republic of China (hereinafter referred to as the Civil Code), it is clear that the legislator has attributed the relationship between personal privacy and personal information as a cross-cutting one. The use of the concept of "privacy" in this article will also be consistent with the current law.  In other words, the so-called "personal privacy" in this paper includes not only "private space," "private activities," and "private peace of mind," which are not personal information, but also "private information" that is part of "personal information. The so-called "right to privacy" is formed when we rightsize personal privacy. Generally speaking, the right to privacy refers to the protection of the peace and privacy of one's private life.

The current research on the right to privacy in domestic academic circles focuses on the following four aspects: first, elaborating the concept and types of the right to privacy; second, defining the nature of the right to privacy; third, identifying the differences between the right to privacy and other rights; and fourth, discussing the ways of protection of the right to privacy (including the ways of protection under public law and private law). The discussion in this paper will be based on the fourth category of research mentioned above. As far as the public law protection of the right to privacy is concerned, there has been some research in the academic world. For example, some scholars have pointed out that a single private law protection of individual privacy is not enough, and it is necessary to introduce a public law protection method; some other scholars have paid attention to the protection of citizens' right to privacy from the perspective of the constitution, and believe that with the advent of the information age, the right to informational privacy has ushered in its constitutional moment; and many more scholars have focused their research on the issue of the public law protection of individual types of privacy rights. However, compared with the fruitful research results on privacy in the field of civil law, the relevant discussions of public law scholars are obviously still quite insufficient. The main reason for this situation is that in the traditional social governance process, the government in the face of privacy disputes is mostly in the capacity of policy maker and conflict mediator with a supreme neutral status, and less directly become a party to the privacy disputes. Therefore, citizens' privacy infringement disputes occurred in the past more in the private subject, the reality of the government's violation of citizens' privacy is less likely to occur. This leads to the protection of citizens' privacy in the past more in the field of private law rather than public law.

However, with the development of society, especially the all-round penetration of information technology into social production and life, the Government has entered the data flood and become the largest collector and utilizer of citizens' information. The government has begun to accomplish social governance by processing various kinds of information from social subjects. For example, public security authorities use information collected by cameras in public areas to assist in maintaining social order, Internet surveillance departments collect and analyze data on citizens' Internet access to maintain network security, and government departments collect a wide range of citizen information as a result of the vigorous implementation of e-government, and so on. The above government initiatives certainly help to improve the government's administrative efficiency and realize the government's precise governance of society, but there is also a great suspicion that the government violates citizens' privacy rights when it handles a large amount of citizens' information. This can be seen in the recent series of incidents in which the government's use of "health codes" and "civilization codes" to deal with public affairs has aroused public skepticism. According to public opinion, the government's purpose in allowing the public to hold "health codes" and "civilization codes" is not to prove that the citizens themselves are healthy or civilized, but rather, its main purpose is to keep track of the citizens' movements or to collect other private information about the citizens. The government's handling of citizens' information in order to accomplish social governance and the citizens' emphasis on protecting their privacy actually involve a conflict between the public interests represented by the government and the private interests held by the citizens. This conflict in public law is very different from the clash between the interests of individual citizens discussed in private law, because the discussion of citizens' privacy protection in public law will emphasize the limits of the exercise of public power and will often require the state to seek a balance between the public and private interests of protection. At this point, how to ensure that the government can obtain enough information about citizens to accomplish efficient and scientific social governance, while at the same time ensuring that citizens' privacy rights are not infringed upon by the government's information-processing behaviors, has become an important issue to which theory must respond.

2.The prominence of the public law model of privacy protection in the digital age

Although the issue of privacy protection has existed in both public and private law from the very beginning, due to the limitations of the historical stage of social development, the protection of the right to privacy was initially presented as more of a private law issue. With the advent of the digital age, the government has gradually become the largest collector and user of citizens' information, and the necessity of public law protection of the right to privacy has been greatly emphasized. In terms of evolution, the protection of the right to privacy first appeared more in the private law domain, and the private law protection of the right to privacy experienced an evolution from a negative mode to a positive mode; then, the protection of the right to privacy began to expand from the private law domain to the public law domain.

2.1Negative model of private law protection of the right to privacy

At a time of increasing economic prosperity, technological advancement and the gradual development of mass media, people are becoming more and more intertwined and closer to each other. This brings a lot of convenience to people's life, but also makes people's private space become smaller and smaller. People are more eager to keep their own private life, and do not want to let all information about themselves to be prying eyes of the media and society at large.

In order to respond to the public demand, the legislator began to establish the protection of citizens' privacy as an absolute, worldly defense right at the legal level. At this stage, because the main body of the exercise of public power is less involved in disputes about the privacy of citizens, so the privacy of the right to defense at this time is mainly the mass media and other members of the public and other private subjects, and the legislator establishes the mode of protection of the right to privacy is also manifested in the absolute protection of the right to privacy of the individual. This absolute protection directly leads to legal restrictions on the freedom of other individuals in society, which will involve the conflict of interest between individuals and balance. The government's task at this time is to reconcile these tensions between individuals in society as a neutral policy maker and arbiter of disputes. The mode of privacy protection at this time can be called the negative mode of privacy protection. This model mainly presents the following four characteristics: first, it establishes the absolute defense right attribute of citizens' privacy; second, it regulates the target mainly is the public excluding the privacy right holder; third, the government generally will not become a party to the privacy dispute; fourth, the government's main task is to reconcile the conflict of interest between the privacy right holder and other public.

In fact, the negative mode of privacy protection corresponds to the needs of citizens' personal privacy protection in the industrial age. The reason for the aforementioned characteristics of the privacy protection mode in this stage is that in the Industrial Age, the social group of the information industry had not yet been formed, and the government was mainly a supreme neutral existence to mediate and adjudicate personal privacy disputes. Therefore, at the stage of the negative model of private law protection of privacy, the threat to citizens' privacy is mainly posed by other social individuals. Citizens' need for privacy protection is more a desire to enjoy a passive freedom by keeping their own private life peace and secrets from being intruded and pried into by others. Citizens' private life peace and private life secrets are mainly related to the public's freedom and dignity, and people do not want to be "naked" in front of the public because of the loss of privacy. In short, in the traditional negative private law privacy protection model, the maintenance of citizens' human dignity and freedom is the main value pursued by the legislation.

2.2 Positive model of private law protection of the right to privacy

With the advent of the digital age, the value of social information is being explored and utilized as never before. Information has gradually become a resource as important as material and energy. As a result, the value of citizens' personal information (including citizens' private information) is no longer limited to the traditional dignity and freedom of the individual, but extends its important functions in business and public administration. It is important to note that, although the value of citizens' personal privacy has seen new growth at this time, the protection of human dignity and freedom is still the core value of the state's protection of citizens' right to privacy. It is just that the new circumstances of the times require the State to re-examine the value of citizens' privacy and to make timely policy adjustments to it.

One of the most important changes at this stage is that information operators, as a new type of social entity, have begun to rapidly join the ranks of those who mine and collect citizens' personal information (including their private information). These information operators have made profits by extensively collecting citizens' personal information and fully exploiting the commercial value of it. For example, e-commerce platforms often collect citizens' personal information through their browsing history and purchase records on e-commerce websites, and use a series of algorithms to push information on goods or services that may match the personalized characteristics of the consumer to potential consumers, in order to accomplish precision marketing. For example, some information operators collect, analyze and integrate citizens' personal information in large quantities to establish large-scale information query platforms in order to satisfy the public's demand for information about other social entities, and ultimately to make profits from the platforms themselves. Such behaviors of the information operators show the huge commercial value of citizens' personal information from one side.

However, this commercial value of citizens' personal information is contrary to the definition of the nature of citizens' right to privacy in traditional theory. According to the traditional theory of the definition of the nature of the citizen's privacy, privacy is a pure personality rights, maintaining human dignity and freedom is the core (or even the only) value pursued by the legislator to protect the citizen's privacy, so the citizen's personal privacy can not be directly treated as the object of the sale. This is also the core concept adhered to by the negative privacy private law protection model. However, as mankind enters the digital age, information operators begin to appear in large numbers and gradually become a legally existing social group, and citizens' personal information becomes an important social resource, citizens' use of their own private information has actually gradually changed from passive social defense to active social use. In other words, the public's protection of personal privacy is no longer simply a request for others not to disturb their peace of mind, but a further wish to be able to freely dispose of their own private information. To put it differently, privacy holders should have the right to decide on their own whether and how to disclose their private information. This demonstrates the positive orientation of citizens' right to privacy. As relevant scholars have long pointed out, citizens' right to privacy has gone through a process of development from information privacy to information autonomy. As such, the legislator's mode of protection of citizens' right to privacy has also evolved from a negative mode of private law protection of privacy to a positive mode of private law protection of privacy.

It can be seen that, compared with the traditional negative private law protection model of privacy, the new positive private law protection model of privacy pays more attention to the exploitation of the great commercial value of citizens' personal privacy information. As mentioned above, even in the stage of positive private law protection of privacy, human dignity and freedom constitute the core connotation of the protection of citizens' privacy. Therefore, even with the consent of the citizens themselves, the information industry should not be allowed to collect and use citizens' private information without any bottom line. For example, it is clear that an information provider cannot make an agreement with a citizen that "the information provider may use the citizen's private information in a way that humiliates or destroys the citizen's personality." Such an agreement between the parties would necessarily be prohibited by the laws of civilized nations. Moreover, even citizens themselves cannot use their private information for commercial gain without restriction. For example, a male citizen who agrees to perform for a commercial company in order to maximize social attention for the commercial company obviously cannot choose to seek social attention by exposing his private parts to women passing by, as this would constitute an unlawful intrusion into others' lives.

2.3 Models of public law protection of the right to privacy

After entering the digital age, citizens' personal lives and interactions with the government are increasingly becoming electronic. The higher the degree of this electronicization, the more urgent the government's need to grasp citizens' information; and the more detailed the government's grasp of citizens' information, the more likely it is that the government will achieve effective and precise governance of public affairs. All of this has prompted modern governments to begin collecting citizens' personal information on a large scale.

Specifically, the government's collection of citizens' personal information is mainly driven by two aspects: first, the government is the maintainer of public order and the promoter of social welfare, and the government can only achieve the above goals by mastering enough data; second, the increasingly complicated public administration affairs also prompt the government to explore feasible means to enhance its administrative efficiency, and the acquisition of these effective administrative means needs to be supported by sufficient information. At the same time, in practice, the government does rely on its own unique resources and conditions, and gradually become the largest possession of information of citizens in modern society. As a result, the government has broken through the transcendent neutral role it has been playing, and become a new social group with interest in citizens' personal information (including citizens' private information). It can be seen that in the digital age, citizens' personal information not only highlights its great commercial value, but also its public management value is increasingly presented.

However, although the government's use of public power to process citizens' personal information is often said to be necessary to protect the public interest, the public is still concerned that the government may abuse that power. Therefore, the public expects legislators to impose special restrictions on the government's handling of information. At this point, the need for public law protection of citizens' right to privacy comes to the forefront, and this protection finally forms a model of public law protection of citizens' right to privacy. It should be noted that the protection of citizens' rights by the state generally includes two levels of implications: first, under the triadic framework of "private-state-private", the state protects the rights of one private subject from the rights of another private subject; second, in the dualistic framework of "private - state", the state practises passive non-interference and active protection of private rights. The so-called "public law protection of citizens' right to privacy" in this paper is based on the second level mentioned above. In other words, the "public law protection of citizens' right to privacy" in this paper refers to the negative non-interference and positive protection of citizens' right to privacy by the state itself, in which the citizens' right to privacy in the mode of public law protection encompasses the dual aspects of the negative right to defense and the positive right to protection. Generally speaking, the public law protection mode of citizens' right to privacy is more restrictive to the exercise of power by the government, and more strictly scrutinizes the government's handling of citizens' private information in the name of public interest. In other words, under the public law protection model, the citizen's personal privacy interests will receive special care under the law.

Therefore, although the private law protection model of citizens' right to privacy and the public law protection model do have many similarities, there are great differences between them in terms of the object of defense, the interests to be balanced and the procedures to be followed. First, the public law protection model of the right to privacy is mainly the government exercising national public power, while the private law protection model of the right to privacy is mainly for the defense of other private subjects other than the person who has the right to privacy. Secondly, the public law protection model of privacy is mainly devoted to balancing the conflict between social public interests and citizens' individual privacy interests, while the private law protection model of privacy mainly deals with the conflicting interests between social private subjects. Thirdly, the public law protection model of the right to privacy will attach heavier procedural obligations to the subject of public power, while the private law protection model of the right to privacy has basically the same procedural requirements for the subject of the procedure of each party. In addition, compared with the public law protection model of the right to privacy, even the positive private law protection model of the right to privacy, which is also in the digital age, does not deliberately emphasize the special protection of the rights of one party subject. All these highlight the great difference between the public law protection model and the private law protection model of the right to privacy.

In short, the State's protection of citizens' right to privacy has gone through three stages of iterative innovation: "negative private law protection - positive private law protection - public law protection". On the one hand, with the gradual emergence of the positive aspects of citizens' right to privacy, the legal protection of citizens' right to privacy in the field of private law has begun to change from the negative mode of protection to the positive mode of protection. On the other hand, in the digital era, with the government becoming the largest possessor of citizens' information, the government began to leave its neutral role and intervene in the disputes over citizens' privacy rights, and the state's protection of citizens' privacy rights was also extended from the mode of private law protection to the mode of public law protection.

3.Consideration of elements of the division of modes of public law protection of the right to privacy

In the digital age, the public law protection of citizens' right to privacy has become increasingly important. Unlike the private law protection model of privacy, the public law protection model of privacy often has to deal with the conflicting relationship between public and private interests. This requires us to define the nature of citizens' right to privacy, and then to explain under what conditions the individual's private interests need to yield to the public interests of society. In addition, before developing a public law protection model of the right to privacy, we also need to distinguish between levels of effectiveness of the right to privacy, and at the same time, clarify the different values of citizens' private information, and distinguish the different identities held by citizens, because these three levels of consideration together determine the strength of the public law protection of citizens' right to privacy.

3.1 The nature of public law protection of the right to privacy

The information revolution has facilitated the digital transformation of modern governments, and the construction and promotion of digital governments has created a need for governments to possess citizens' personal information. This has led to a tension between the government and individuals: on the one hand, the government needs to collect citizens' personal information in order to fulfill the purposes of public administration; on the other hand, members of the public do not want to disclose their own information due to the expectation of privacy interests in their personal information. In essence, this is a conflict between the public interest represented by the government and the privacy interest held by citizens.

In the context of "respect for and protect private rights" has been universally recognized by the constitutions of various countries, any civilized country will no longer use "public interest is absolutely superior to private interest" as the reason to roughly require the subject of private interest to unconditionally make concessions to the public interest projects. Therefore, what we should think about is: when will the public interest be prioritized over private interests? At present, the basic principle for the state to deal with the conflict between social public interest and individual privacy interest is generally to see whether the state has the need to give special protection to the privacy right of specific citizens under specific circumstances. Of course, this way of thinking is still centered on public interest considerations, so it may still attract the challenge that "the government overrides and suppresses the legitimate rights and interests of private individuals in the name of public interest". Therefore, we might as well change our way of thinking further, that is, to take private legitimate interests as the core of our thinking, and consider "under what circumstances private interests should make the necessary concessions for public interests". Under the guidance of this way of thinking, in the following paragraphs, I will discuss when citizens' right to privacy should give way to the government's right to process information. In other words, when should a citizen's privacy interests, which should be exclusive to the citizen, be shared with the government and other members of society?

The privacy regime is also a product of competition, and privacy interests are inextricably linked to competition among members of society. Competition exists between people because of the scarcity of social resources and the self-interested nature of human beings. "What gives rise to conflict or competition between interests is the competition between individuals against each other, between groups, unions, or associations of people against each other, and between individuals and these groups, unions, or associations in their endeavors to satisfy the various demands, needs, and desires of mankind." But human beings are social group animals, so even out of competition, people have to cooperate with each other. Thus, the coexistence of competition and cooperation becomes the basic form of society.

Based on the dual considerations of competition and cooperation, individual members of a social group have to constantly think about how to find a balance between the "exclusive use of information benefits" and the "sharing of information benefits". At this time, people's privacy preference is no longer just about controlling or blocking personal information, but also about dynamically reconciling information sharing and exclusivity. In other words, although personal privacy information is the exclusive information benefit that a member of a particular social group should enjoy, sometimes, based on the consideration of the interests of social group cooperation, the possessor of personal privacy information should share this privacy benefit that was originally exclusively possessed by the citizen with other members of the social group. In this case, the citizen's right to privacy needs to make the necessary concessions to the government's right to process information. It is important to note that such privacy interests of members of society must be considered in the context of a particular group. Personal information that is private in one social group may not be private in another. If the information does not constitute personal privacy, the government does not need to be restricted by the protection of citizens' personal privacy interests when collecting and using it. The above characteristics of citizens' private information can also be regarded as the dual attributes of personal and social information, and the protection of private information should move from personal control to social control, so as to achieve a balance between individual interests and the overall interests of society.

In conclusion, the essence of the public law protection of the right to privacy lies in the necessary balance between the public interests of society and the private interests of individuals. This balance between public and private interests can be further developed in three dimensions: the distinction between levels of privacy, the clarification of the direction of the value of private information, and the identification of differences in citizenship.

3.2 Hierarchical distinctions of the right to privacy

Civil rights differ in their degree of universality, inherency, inviolability and inalienability, so scholars tend to distinguish civil rights into three levels, i.e., rights at the level of original rights, rights at the level of basic constitutional rights and rights at the level of general legal rights. As the name suggests, rights at the level of original rights refer to the rights that a person should originally enjoy, so original rights can also be called inherent rights; rights at the level of basic constitutional rights and general legal rights refer to the rights explicitly stipulated by the constitution or general laws. Of course, although we can make the above hierarchical distinction between civil rights, it does not mean that a right can only belong to a certain level. For example, although original rights are generally not required to be expressly stipulated in the constitution and laws, very often the state, in order to warn the government and limit the public power, will adopt the constitution and laws to substantiate the original rights. In fact, the significance of categorizing civil rights lies mainly in the fact that it can establish the priority of guaranteeing rights, determine the severity of the grounds for restricting rights, and clarify the degree of restriction on whether rights can be discarded, and so on.

In terms of domestic and foreign legislation, the right to privacy of citizens has been recognized at the constitutional and legal levels in various countries or regions. In the United States, the right of citizens to privacy has been justified by the Fourth Amendment to the Constitution, the Fifth Amendment to the Constitution, the law of torts, and the rules established by a large body of jurisprudence. In Germany, scholars generally believe that the protection of citizens' right to privacy has been encapsulated in the German Basic Law, Article 2 of the human dignity provisions, while the German Civil Code will recognize the citizens' right to privacy as a general right of personality. China's academic circles generally believe that the basic right of citizens' privacy connotation can be introduced from the "Constitution of the People's Republic of China" (hereinafter referred to as: "Constitution"), Article 38, Article 39 and Article 40; at the same time, the "People's Republic of China Civil Code" is also independently set up personality rights, citizens' right to privacy is explicitly provided for under the Part. In short, from the legislative examples of various countries or regions, it is clear that citizens' right to privacy has been universally recognized as a kind of right with both the level of basic constitutional rights and the level of general legal rights. In addition, as stated at the beginning of this article, the right to privacy originates from the human shame instinct, is a natural human emotion, and is a right inherent in human beings. Therefore, the right to privacy can also be summarized as an original (or inherent) right.

In addition, the classification of civil rights into original, fundamental and general legal rights represents a vertical hierarchy of rights, whereas there is in fact a horizontal hierarchy of civil rights. In other words, rights belonging to the same vertical dimension may, under certain conditions, also have horizontal differences in hierarchy of effectiveness. Take the horizontal hierarchization of constitutional rights as an example: citizens' right to privacy and public freedom of speech belong to the category of constitutional freedoms, but citizens' right to privacy will be given priority over the right to public freedom of speech and receive special protection under certain circumstances, which shows the horizontal hierarchization of the right to freedom. In fact, whether the rights are vertically or horizontally hierarchized, they all imply that, for the subjects exercising public power, the exercisers of public power need to give different degrees of care to the rights belonging to different levels.

Of course, although we can make horizontal and vertical hierarchization of citizens' right to privacy, this paper will mainly discuss the vertical hierarchization of citizens' rights. This is because when making horizontal hierarchization of citizens' right to privacy, it mainly deals with the conflict of interests between the subjects of basic rights (i.e., between citizens and citizens), which is outside the scope of this paper; while the vertical hierarchization of citizens' right to privacy involves the restriction of the exercise of the government's right to process information in different degrees and in different ways, which is related to the grand purpose of this paper. Therefore, when this paper develops the public law protection mode of citizens' right to privacy, it will vertically differentiate citizens' right to privacy into three different levels, such as the original right, the basic right and the general legal right. On this basis, the author will put forward different strict requirements on the government's data processing behavior, and these different requirements constitute different degrees of limitations on the power of the exerciser of public power.

3.3The direction of the value of citizens' private information

Citizens' different personal private information contains different intrinsic value pursuits, and these differently valued personal private information points to different interests of citizens. As mentioned above, the right to privacy has traditionally been designed to protect citizens from infringement of their human dignity and personal freedom, and therefore the state has established a system of absolute defence for citizens' right to privacy in the past. With the development of the times, the commercial value of citizens' private information and the value of general public management began to show, the state and the market have the real demand for the use of citizens' private information, and the public is also willing to give up part of the less important private information to seek personal interests. Therefore, citizens' private information can be divided into different meanings from the value level, and these different values of private information actually imply different interests of citizens. If we distinguish citizens' private information from the dichotomy of "core - periphery", citizens' private information that contains the value of citizens' human dignity and freedom is obviously related to the core interests of citizens, while citizens' private information that only contains the value of business and general public administration is relatively directed to the marginal interests of citizens. The government will be guided by different standards in handling these two types of citizens' private information with different interest orientations. Specifically, the government will be subject to stricter legal restrictions on the handling of private information that relates to the core interests of citizens, while the government will have more room for manoeuvre when handling private information that relates to only the marginal interests of citizens.

In fact, the reason why we distinguish the citizen's right to privacy into different levels of effectiveness, such as original right, basic right and general legal right, is also because the citizen's right to privacy pursues different values at different levels of effectiveness.

Firstly, certain private information of a citizen may be directly related to the dignity of that citizen. Dignity of the human person is linked to a citizen's core privacy interest, and it points to a citizen's right to privacy in the nature of original rights, which may not be deprived of by external forces at any time. For example, no individual or organisation can under any circumstances force a citizen to be naked in public for the purpose of humiliation.

Second, some of a citizen's private information may relate to that citizen's personal liberty. In this case, the citizen's personal information also relates to an important privacy interest of the citizen, but it points to the citizen's right to privacy only at the level of a fundamental constitutional right. This personal freedom of the citizen may be interfered with by others only in exceptional circumstances. For example, no organisation or individual is generally allowed to enter a citizen's home without permission, but the police may carry out necessary searches of a citizen's home if the police are legally authorised to do so in the interests of public safety.

Finally, citizens' personal privateinformation is sometimes embodied only as a right at the general legal level. As mentioned earlier, in the digital age, citizens' personal privacy information has revealed its great commercial and public administration value. Compared with human dignity and freedom, which are the core interests of human beings, citizens' personal privacy interests at this time belong to relatively marginal privacy interests, and the right to privacy at this time also points to more general legal level rights.

In short, the privacy rights attached to citizens' personal information will be protected in different ways depending on the value it contains.

3.4Identification of differences in citizenship

Depending on the degree of visibility in public life and influence on public issues, we can distinguish between two categories of citizenship, such as public figures and ordinary private individuals. The term "public figures" refers to those "who are deeply involved in the resolution of important public issues or who, by virtue of their fame, have influence on events of wide public interest". Public figures include not only political figures, but also elites from all walks of life, such as those in science and technology, the economy, health care, culture and education, and even individual citizens who have involuntarily become the focus of social attention as a result of public events. In the practice of protecting citizens' right to privacy, public figures are subject to a narrower scope of personal privacy protection due to, among other reasons, a perceived lower expectation of privacy interest. For example, in China, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued, as early as 1995, the Provisions on Income Declarations by Leading Cadres of Party and Government Organs Above the County (Division) Level, and in 2017 continued to promulgate the Provisions on the Reporting of Matters of Personal Relevance by Leading Cadres and Measures for Handling the Results of the Verification of Matters of Personal Relevance Reported by Leading Cadres. These normative documents require leading cadres to declare their own relevant income, and explicitly list the income matters that leading cadres need to declare. The direct purpose of these documents is of course to prevent corruption of public officials, but the important consideration of requiring only public officials, but not ordinary private individuals, to declare their incomes in the legislation is obviously also the attribute of public officials as public figures, and therefore the scope of privacy protection enjoyed by public officials is smaller than that enjoyed by ordinary individuals. Similarly, extraterritorially, public figures are subject to more restrictions on the protection of their privacy.

It is also generally accepted in the academic community that "belonging to a public figure" is very often a defence to privacy infringement. This notion is justified on several grounds. First, public figures (e.g., politicians) are often concerned with public welfare and should therefore be subject to greater public scrutiny. Second, public figures (e.g., celebrities) often benefit from public attention, and based on the principle of equality of benefits and burdens, public figures should also bear more burdens. Third, public figures often actively solicit society's attention, and their expectation of privacy protection should be lowered. Fourthly, public figures are often role models for the community at large, and we should disclose more information about them in order to shape the correct values of the community and to promote the discussion of relevant public issues. Based on the above considerations, the statutory requirements and procedures to be followed by the Government in handling private information of public figures will be different from those of ordinary individuals.

In conclusion, the essence of public law protection of the right to privacy lies in balancing the public interest of society and the private interest of individuals. The state's balancing requires careful consideration of three dimensions: first, to distinguish the hierarchy of the effectiveness of the right to privacy, distinguishing the right to privacy into three levels, such as the original right, the basic right, and the general legal right; second, to clarify the value of the citizens' personal privacy information, classifying the citizens' privacy interests into the core privacy interests of the citizens and the peripheral privacy interests of the citizens, and so on; and third, to identify the different statuses of citizens, classifying the citizens into public figures and ordinary private individuals. On this basis, the state will be able to implement the public law protection of citizens' right to privacy.

4 The unfolding model of public law protection of the right to privacy in the digital age

As mentioned above, compared with the private law model of privacy protection, the public law model of privacy protection will place special emphasis on the special limitation of the power of one of the disputing subjects (the government), and it is often necessary to constantly balance between the public interests of the society and the interests of citizens' individual privacy. In the process of government processing of citizens' information, the state's balancing of the rights and interests of the subject of power (interest) is mainly manifested in two aspects. On the one hand, the state will restrict the government's power to handle citizens' private information. That is to say, the government is not allowed to handle citizens' private information unless it is necessary. On the other hand, the state may require citizens to make moderate concessions to the government's information processing behaviour exceptionally for the sake of cooperation among members of social groups. In other words, citizens' privacy interests sometimes have to give way to the public interest. In other words, the principle is that the state protects the privacy of its citizens, while the exception is that it requires citizens to disclose information that is exclusively private to them.

Then, how should the state carry out the protection of citizens' right to privacy? As the author said earlier, the level of effectiveness of the right to privacy, the pursuit of civic values of privacy information, and the identity differences of the citizens, and other factors determine the state's protection of citizens' right to privacy. Therefore, we need to set up different modes of public law protection of the right to privacy on the basis of comprehensive and careful consideration of the above three factors. The author summarises these different modes of public law protection of the right to privacy into the following four categories, i.e. the absolute public law protection mode of the right to privacy, the strict public law protection mode of the right to privacy, the general public law protection mode of the right to privacy and the weak public law protection mode of the right to privacy.

4.1 The absolute public law model of protection of the right to privacy

Of the four modes of public law protection of citizens' right to privacy, the absolute protection mode provides the greatest protection of citizens' right to privacy. This model requires the most stringent restrictions on the government's handling of citizens' information in order to maximise the protection of citizens' right to privacy.

The reason for adopting such a strong public law model of privacy protection is that at this point in time, citizens' private information often points to the core values of citizens' right to privacy - human dignity and freedom. This is a right at the level of the citizen's original rights. This is the minimum guarantee that the state should provide for the rights of individual citizens, and it is also the social bottom line that a civilised country should defend. If the rights of citizens at this level are trampled upon arbitrarily, the society in which they live will be no different from the jungle world, where the rule of the jungle is simply the rule of the jungle. According to Article 38 of the Constitution, from the point of view of privacy protection, private information concerning the dignity of citizens' personality involves the most essential and core interests of citizens, and at this time, the right to privacy of citizens belongs to the level of the original right reaffirmed and emphasised by the Constitution, and therefore the Constitution will give it the highest degree of protection. In other words, article 38 of the Constitution, which stipulates that the human dignity of citizens is absolutely protected by the fundamental law of the State, can be regarded as a direct statutory expression of the absolute public law protection model of the right to privacy.

Furthermore, it should be emphasised that although we divide citizens into public figures and private individuals on the basis of their status, and consider that public figures have a much lower expectation of their privacy interests than private individuals, this understanding is only valid if the right to privacy of citizens is directed to the marginal privacy interests of citizens rather than the core privacy interests of citizens. Moreover, the marginal privacy interests of the public figures involved should also be closely related to public life, otherwise there is no reason for us to particularly demand public figures to lower their expectation of their own privacy interests. In other words, the above two qualifications are the prerequisites for us to request a higher level of privacy exposure for public figures. These two qualifications should be particularly emphasised when the personal information concerns the core privacy interests of the public figure (e.g. the public figure's human dignity). Therefore, the State should no longer distinguish between public figures and ordinary private individuals in cases where the core privacy interests of citizens are at stake, but should give absolute public law protection to the privacy rights of citizens in such cases.

In short, the right to privacy that the absolute public law protection model seeks to protect is a right of origin, and the value of the personal information to which the right to privacy refers usually lies in the defence of citizens' human dignity, which is the core of the inviolable fundamental right. Therefore, not only can the public authorities not deprive citizens of their right to privacy for any reason, but also the citizens who enjoy the right to privacy cannot give up the right for any reason. In other words, the Government is under an obligation to provide absolute protection of the right to privacy at this time.

4.2 The strict public law model of protection of the right to privacy

The strict public law model of the right to privacy is second only to the absolute public law model of the right to privacy in its protection of citizens' privacy. Compared to the absolute protection of privacy interests by the absolute public law protection model of privacy, the strict public law protection model of privacy, the general public law protection model of privacy and the weak public law protection model of privacy can be regarded as the relative protection of citizens' privacy interests. Among these three relative protection models, the strict public law protection model of the right to privacy is the one with the strongest protection of the right to privacy.

The model of strict public law protection of the right to privacy is primarily concerned with the rights of citizens at the level of fundamental rights. Although this type of personal information does not relate to the core needs of citizens in the same way as the original rights of citizenship, the fundamental rights of citizenship often directly determine the independent and complete development of the individual citizen, and are therefore also extremely important civil rights. It is only at this point that this fundamental right of citizens often conflicts with other types of fundamental rights of other citizens, or involves tensions between civil liberties and social public governance, so the state can not provide absolute and exclusive protection for the basic right of citizens to privacy, but needs to appropriately balance the relationship between the protection and the use of the right.

In terms of the implementation of the specific legal mechanisms of the strict public law protection model, the State generally realises the public law protection of citizens' right to privacy by imposing mandatory obligations on the government as an information processor. For example, according to Article 45 of the Law of the People's Republic of China on Cybersecurity, the cyber monitoring authorities shall keep strictly confidential the private information of citizens that they have learnt in the course of performing their duties, and shall not disclose, sell, or illegally provide it to others. Article 25 of the Electronic Commerce Law of the People's Republic of China (hereinafter referred to as the E-Commerce Law) has a similar provision: the competent authorities of e-commerce shall strictly keep confidential the data provided by the e-commerce operators that involves the privacy of citizens, and shall not disclose, sell or illegally provide it to others. The Law on the Protection of Personal Information also establishes a special chapter and section, namely, section III of chapter II, to closely regulate the activities of State organs in handling personal information.

It can be seen that the strict public law model of protection of citizens' right to privacy is based on protection rather than use. So, when can the State request the reasonable use of a citizen's private information? The common practice is to decide whether the citizen's private information is in the public interest, and whether the civil liberties involved in the private information must give way to the public interest. For example, in the Guangzhou Baiyun District Education Bureau and Fangmou government information disclosure appeal case, the court of second instance thought kindergarten teacher's physical examination materials should be disclosed, because "teachers' physical health examination materials related to the health and safety of all students in kindergartens, if it's not disclosed on the grounds of personal privacy, it would cause a significant impact on the interests of kindergarten students and parents". It is clear that the Court of Second Instance was of the view that citizens' right to personal privacy should be conceded to public safety under certain circumstances.

Extraterritorial jurisprudence has also gradually recognised the necessary concession of citizens' privacy interests to the public interest of society. Taking police searches of citizens as an example, in the traditional public law perspective, it is generally believed that citizens have the right to refuse searches of their homes, belongings, or bodies by government agents as a means of protecting their right to privacy. However, in the subsequent case of Weeks v. United States, the judge held that "the government has the right to search the defendant upon arrest". In Chimel v. California, a case that occurred half a century later, the Court further clarified the scope of the government's ability to search a relative. Thus, the standard established by traditional public law that "the Government may not search citizens at will" has been steadily lowered by these subsequent judicial practices.

Indeed, upon entering the digital age, more conflicts and frictions will likely arise between the protection of citizens' right to privacy and the regulatory needs of the government. For example, in the case of police searches of citizens' smartphones, the U.S. government once argued that searches of citizens' smartphones were not fundamentally different from searches of citizens' other physical belongings. But as Riley v. California demonstrated, smartphones often store vast amounts of private information that far exceed the volume of the physical object. This private information stored in smartphones is indeed quantitatively and qualitatively vastly different from the private information stored in traditional physical objects. Through the information in the smartphone, the citizen's personal identity will be accurately identified. Therefore, it is necessary for the police authorities to be more cautious in conducting comprehensive searches of citizens' smartphones and other smart devices. In fact, sometimes it is not necessary for the police to conduct a comprehensive search of the information in the smart devices. It would be more reasonable for the police to prevent the illegal erasure of relevant information by detaining the smart device and disconnecting it from the network. Of course, the police can also conduct a full search of the information stored in the smart device if there are special reasons. For example, the police have evidence that the information in the smart device is related to a certain offence, or that the information stored in the smart device can help to identify the suspects in a certain case, or that the information in the smart device can help to protect the identities of the relevant police officers from being exposed, and so on. However, more often than not, when the police authorities want to conduct a comprehensive search of a citizen's smart device to collect information related to the citizen, they must obtain the citizen's explicit consent or obtain explicit authorisation from the law.

This paper discusses how to protect citizens' right to privacy at the level of fundamental rights (mainly the right to personal freedom) at the level of public law, and the many examples cited also reflect the state's weighing of the public interest of the society and the privacy interest of citizens, as well as the consideration of whether the private information of the citizens involves the core interest of the citizens or the marginal interest of the citizens. In addition, when handling information relating to citizens' right to liberty, it is necessary for the government to make a distinction between the status of the citizen (whether the citizen is a public figure or an ordinary private person).

4.3 General public law model of protection of the right to privacy

In the general public law protection model of citizens' right to privacy, the citizens' right to privacy refers to the general legal level of rights, and touches on more of the citizens' non-core interests, the state usually adopts a relative protection position for the citizens' personal privacy information. Moreover, the state's relative protection of citizens' private information is weaker than the strict public law protection of the right to privacy.

On the whole, the general public law protection of citizens' right to privacy also needs to be carried out in the three dimensions of citizenship, the value of citizens' personal privacy interests and the level of rights reflected in citizens' right to privacy. Specifically, the general public law protection model of the right to privacy is applicable in the following three situations: firstly, to the rights of public figures at the level of general legal rights; secondly, to the rights of public figures at the level of certain strictly limited basic rights; and thirdly, to the rights of ordinary private individuals at the level of general legal rights.

On the one hand, the citizens' right to privacy under the first and third scenarios points to the citizens' rights at the general legal level, and the citizens' privacy interests embedded in this right actually belong to the citizens' ordinary interests, which generally do not involve the citizens' human dignity and freedom, and to a greater extent manifest the commercial value of the citizens' personal privacy information and the value of general public administration. In terms of legal rights, citizens' private information with commercial value is often manifested as property rights at the level of general legal rights. This is a manifestation of the full and active use of citizens' information resources in the digital age and the pursuit of benefits in return, as well as a manifestation of the progress of citizens' right to privacy from the right to be free from intrusion to the self-determined right to privacy. The self-determined right to privacy obviously implies more positive connotations of citizens' privacy. The embedded public management value of citizens' personal privacy information is a manifestation of the state's social obligation to the originally negative citizens' right to privacy. Because in the new era, the state has changed from the traditional negative night police state to the modern positive regulatory state. At this time, the state needs citizens to actively cooperate and provide data to help the government achieve a more scientific and precise governance of social and public affairs.

According to Articles 13, 26, 33, 34 and 35 of the Personal Information Protection Law, the government may handle citizens' personal privacy information in order to fulfill its legal duties. For example, in order to maintain social order, the government may collect citizens' face images through public video surveillance, or collect citizens' personal identification information (such as identity card numbers) through other devices. These are in fact an obligation imposed by the state on individual citizens in order to fulfill the social management function of citizens' private information. Of course, the government must handle citizens' private information to the extent that it serves the public interest, and cannot use citizens' private information for other purposes, let alone provide citizens' private information to third parties illegally. In addition, the government's use of private citizen information for social management should be differentiated according to the status of citizens: the government's handling of private information of ordinary individuals should be subject to stricter legal control than its handling of private information of public figures.

On the other hand, there are in fact special considerations inherent in the second situation to which the general public law model of privacy protection refers. In this case, the citizen's right to privacy is at the level of a fundamental right, and the value of this level of privacy is usually the citizen's important privacy interest - personal freedom. For citizens' privacy interests at the basic right level, the state should originally protect them through strict public law protection. However, as public figures carry more social expectations, and as public figures often obtain benefits far beyond those of ordinary individuals due to the social attention they receive, the state requires public figures to bear heavier social burdens accordingly. As a result, although public figures have the basic right to privacy, they can only be taken care of by the general public law protection model. It should be noted, however, that public figures in this context should only be referred to as active public figures.

We can categorize public figures into active public figures and passive public figures according to whether the person concerned voluntarily enters the public eye. Active public figures are those who voluntarily become the focus of society, such as government officials, movie stars, etc. Passive public figures are those who enter the public eye by chance because of the media or the Internet, but becoming the focus of society is not the person's wish. For active public figures, their entry into the public eye is their own wish, so when they choose to become public figures, it means that they have agreed to give up part of their privacy interests at the level of basic rights. It is sufficient for the State to provide general public law protection to active public figures. For passive public figures, we cannot presuppose that they have voluntarily given up their privacy interests at the fundamental rights level. For example, due to the popularity of Jingdong Group and Alibaba Group, the female victims in the case of Mr.Liu's alleged sexual assault in the United States and the case of Ali's female employee being assaulted have been passively brought into the focus of public opinion, and the female victims in the two cases are the passive public figures mentioned above.  At this point, compared with the active public figures, the state should obviously give these passive public figures a higher degree of protection of privacy interests. Because passive public figures often do not benefit from being the center of attention in society, but rather suffer from it, it is obviously unreasonable to require them to bear heavier obligations and burdens than ordinary individuals. Therefore, when the state protects the privacy interests of public figures at the level of basic rights, the protection of the privacy interests of passive public figures should still adopt the mode of strict public law protection.

4.4 Weak public law model of protection of the right to privacy

The weak public law protection of the right to privacy is, in effect, an exception to the State's requirement that a citizen disclose private information that would otherwise be the exclusive property of that citizen. In other words, the State does not provide special protection for the citizen's private information at this time. This is the result of the State's necessary balancing of the public interest and the private interest of the citizen.

In essence, the weak public law protection model of the right to privacy is dominated by the utilization of a citizen's private information and supported by the protection of that citizen's private information. The reason for adopting this mode of public law protection for citizens' privacy is that the public attributes of citizens' private information are much stronger than its private attributes at this time. In other words, the value of reasonable utilization of private information is much greater than the value of strict protection of such information.

Then, in what situations will the weak public law protection model of the right to privacy apply? In principle, the weak public law protection model of the right to privacy mainly focuses on the rights of citizens at the general legal level, and involves only the marginal privacy interests of citizens in the disclosure of their personal privacy information. For example, Article 86 of the E-Commerce Law and Article 67 of the Personal Information Protection Law both stipulate that information on illegal behaviors of actors shall be recorded in credit files and made public.In judicial practice, there are also many cases in which the courts publicize to the public the personal information of citizens who do not pay their debts in accordance with the law. These are in fact the result of the State's necessary balancing of citizens' private interests and the public interest. Because a person's debt and debt repayment status, as well as other violation of law information, is originally only the private information of the citizen, the offender does not want to let the information leaked in order to avoid the negative impact on his own reputation. Similarly, in most cases, there is no need for state agencies to publicize such information about citizens. However, if the citizen repeatedly violates the law or the circumstances of the violation are more serious, in order to safeguard the interests of the state or the legitimate rights and interests of unspecified third parties, the state will choose to publicize the relevant information of the offender, in an attempt to rectify the offender's illegal behavior through the relevant credit disciplinary action.

Of course, when applying the weak public law protection mode, in addition to the necessary consideration of the rank of the rights enjoyed by the citizens and the value directed by the rights, it is also necessary to identify the identity of the citizens at this time. Generally speaking, the weak public law protection mode of citizens' right to privacy targets more public figures than ordinary private individuals. This is because some of the public figure's private information of the public attribute has far exceeded its private attribute, these private information carries a wealth of social expectations, so the state will require the public figure at this time for the state to realize the goal of social governance and to give up some of their privacy interests. For example, in the case of Mr.Li's visit to prostitutes, there was not much controversy over the public security authorities' disclosure of the celebrity's offenses to the public in the form of a police bulletin. However, the same is the prostitution incident, when the actor from the star to ordinary students, the public on the school to publicize the name of the students engaged in prostitution practice is greatly criticized, they think that the school's initiative is really a violation of the students' privacy. Visible, for the same nature of behavior, the public produced two opposite perceptions. This is obviously related to Li Moumou is a public figure and the case of three students are ordinary private: the words and deeds of public figures will likely have a great social impact, so people have a more tolerant attitude towards public illegal behaviors of the public figure who committed illegal acts, and the public hope that the public punishment of  the star's illegal behavior of public security organs will be a corresponding warning to other members of the public and educational effect.

In short, in developing a model for public law protection of citizens' privacy, the State needs to strike a balance between the public interests of society and the privacy interests of individual citizens. The State should, on the basis of distinguishing the different levels of effectiveness of citizens' privacy rights, the different value pursuits of citizens' private information, and the different identities held by citizens themselves, adopt four different modes of public law protection of citizens' privacy rights, including the absolute public law protection mode, the strict public law protection mode, the general public law protection mode, and the weak public law protection mode, respectively.

Concluding remark

In the traditional process of social governance, the government always presents itself as a supreme and neutral policy maker and dispute resolver. As a result, privacy disputes are more likely to arise between private parties, and it is less likely that public power will infringe on citizens' privacy rights. However, with the advent of the digital age, citizens' personal information (including citizens' private information) began to highlight its great public management value, the government also increased the collection, storage and utilization of citizens' personal information, and the government gradually evolved into the largest processing subject of citizens' private information, and the risk of infringement of citizens' right to privacy by the public right also increased. As a result, the state's protection of citizens' right to privacy has shown a contemporary evolution from the protection of private law to the protection of public law.

Unlike private law protection of the right to privacy, the public law model of protection of the right to privacy emphasizes special limitations on the power of one of the parties to the privacy dispute (the government). The essence of the public law model of privacy protection is that the state often needs to strike a balance between the public interests of society and the private interests of citizens, and the state often needs to explore the circumstances under which citizens should share their own private interests with the government and other members of society. In balancing the public interest and citizens' privacy interests, the state needs to carefully consider three dimensions: the level of effectiveness of citizens' privacy rights, the value of citizens' private information, and the status of citizens. On this basis, the State may adopt four different public law protection models for citizens' privacy rights, namely the absolute public law protection model, the strict public law protection model, the general public law protection model and the weak public law protection model.