Introduction:
Lending institutions refer to intermediary service providers that conduct preliminary screening of users through drainage and match users with lending institutions to reach cooperation. In the process of selecting users, the loan company needs to collect user information. Not only small companies, but even leading enterprises in the industry and well-known listed companies in the loan category have more or less violated laws and regulations in collecting citizens' personal information.
Therefore, many small and medium-sized business owners who are engaged in the loan business will think, "The gun shoots the first bird, and the thief captures the king first.
Large companies are not compliant, and if you want to punish them, it is not our turn to be a small companyIn particular, the following news that we often see tends to make people more convinced of the aforementioned point.
But actually,Is that really the case?
Let's talk about the conclusion first, according to the cases and consultations that the author has been exposed to, a judgment can be drawn at present (statement: only the conclusion that can be seen from my own thoughts, and the reliability needs to be confirmed by relevant authoritative data):
Administrative penalties bear the brunt of leading enterprises, well-known enterprises in the industry
Criminal punishment is the first to catch small and medium-sized enterprises
Let's start with a caseAccording to a report by "Ping An Beijing Chaoyang"[1], defendants Ge X 1 and Zhu X 1 purchased a loan APP software for the purpose of operating a loan assistance business, and the latter two jointly funded the establishment of a company to operate the APP, and while knowing that the APP collected personal information such as the name and ** number of the registered user, they also collected other personal information such as the registered user's address book, text message, and call record, but did not explicitly collect the above content to the registered user in the APP's "User Registration Agreement". The company illegally collected more than one million pieces of personal information such as user address books, call logs, and text messages.
The court ruled that defendants Ge X 1 and Zhu X 1 were both guilty of infringing on citizens' personal information and were sentencedThree years in prisonand fined 100,000 yuan.
Comment: The court found that the company was engaged in loan business and obtained itContacts, text messages, call logsand other information has exceeded the scope of business, and the number of more than one million. According to Article 253-1 of the Criminal Law on the crime of infringing on citizens' personal information and the Interpretation of the Supreme People's Court and the Supreme People's Court on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Citizens' Personal InformationIllegally obtaining 500 or more pieces of communication content, or illegally obtaining 5,000 or more communication records, i.e. reachedBetween three years and less than ten yearsCriteria for filing a case.
Judging from the publicly disclosed information, the company is only involved in "illegally collecting user information", and does not involve making profits from it. However, according to the law, this crime is not committed for the purpose of profit**, make available, steal, or otherwise obtain unlawfullyCitizens' personal information,all constitute this crime
Examples of forms of infringement by platform apps1. The app registration and login function forces consumers to agree to the privacy policy of a third-party app, and the privacy policy of the third-party app is not related to the purpose of the processing of personal information by this product, and the processing of information does not take the least impact on personal rights and interests.
Relevant legal provisions: Articles 5 and 6 of the Personal Information Protection of the People's Republic of China.
2. In the case that the consumer does not agree to the privacy policy, directly applying for the permission to open the precise location information is an act of collecting and using personal information without the consent of the consumer.
Relevant legal provisions: Article 13 of the Personal Information Protection of the People's Republic of China**.
3. When using a loan app for the first time, the app reads the application list, but does not inform the consumer of the purpose of reading the application list.
Relevant legal provisions: Article 17 of the Personal Information Protection of the People's Republic of China**.
03 Criminal Lawyer Risk Warning:At present, China attaches more and more importance to the protection of personal information, and relevant laws, regulations, and policies are constantly improving.
In 2009, the Criminal Law Amendment added the crime of infringing on citizens' personal information. In 2017, the Supreme People's Court and the Supreme People's Court issued the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Citizens' Personal Information, and in 2021, the Personal Information Protection ** was promulgated.
At the same time,With regard to financial consumption, the relevant policies in the field of lending are constantly tightening
In March 2022, the China Banking and Insurance Regulatory Bureau (CBIRC) issued the "Risk Reminder on Vigilance against Excessive Lending and Marketing", mentioning that "some financial institutions and internet platforms ......Obtain authorization by means of tacit consent, general authorization, etc.; Using personal information for purposes other than credit card business or consumer credit business without the consumer's consent or against the consumer's will; Improper acquisition of external information from consumers, etc. ”
Lawyer Shao Shiwei
Shanghai Mankun Law Firm, Senior Lawyer.
Lawyer Shao Shiwei, Master of Laws from East China University of Political Science and Law, has been practicing law for 6 yearsHandleLitigation and non-litigation casesMore than 300 piecesHe has a solid foundation in legal theory and practical experience in handling cases. WasDozens of corporate legal counselHe has provided legal services for a number of Internet companies and blockchain companies at home and abroad, such as SaaS, metaverse social platforms, and e-commerce trading platforms, and has conducted in-depth research on digital asset protection, cross-border data, platform operation compliance, and information protection. He is good at building a corporate compliance system based on the company's own business needs, combined with industry regulatory regulations, improving the company's internal governance structure, and being able to effectively meet or achieve the customer's business objectives, complete projects and conclude transactions on the basis of compliance to the greatest extent. Main business areas:
Data Crime and Data Compliance Governance
Information network crimes, Internet black and gray industry crimes
Criminal defense involving blockchain and currency circle
Prevention, control and defense of high-incidence crime risks in enterprises
Typical cases
*In the case of a digital collection platform legal person suspected of fraud, the lawyer submitted a legal opinion of more than 10,000 words, communicated with the public security prosecutor for many times, and proposed the business behavior of the platform and the partiesThe not-guilty defense opinion was finally adopted by the judicial organsAfter 4 months of the legal person, the public security withdrew the case;
* In the case of a technology company legal person suspected of aiding information network criminal activities, the lawyer met to inquire about the case and investigate and collect evidence, and submitted it to the prosecutor in chargeThe evidence in this case is insufficient, and the parties do not constitute a crimeand other defense opinions, the procuratorate made a decision not to approve the arrest within 37 days, and finally withdrew the case;
* A case of a company legal person suspected of being false, combined with the criminal circumstances of the enterprise involved, the attitude of admitting guilt, and the return of stolen goodsAccording to the spirit of "fewer arrests, cautious prosecution, and cautious detention"., and put forward that the circumstances of the party's crime are obviously minor and the harm is not greatThe recommendation not to prosecute the parties was adopted by the procuratorate, the case was finally disposed of as a non-prosecution;
* In the case of an employee suspected of illegally absorbing deposits from the public, the client was sentenced to a suspended sentence by putting forward the defense opinion that the employee was not an executive of the company, was an accomplice, and that his family had withdrawn the corresponding illegal gainsThere were nearly 10 co-defendants, and only one of the employees was given a suspended sentence
* A food company is suspected of offering bribes to non-state employees, and the unit offers bribes of more than 2 million yuan to relevant personnelThe legal person of the unit was sentenced to a suspended sentence
Core Benefits:
He has rich practical experience, is diligent and responsible, efficient and proactive, and actively protects the legitimate rights and interests of the parties. A number of cases have been withdrawn by the public security organs, the procuratorate has not prosecuted, and the courts have sentenced them to suspended sentences.
Research Report on the Development of China's Internet Loan Business pointed out that under the policy background of "commercial banks must independently and effectively carry out core risk control links".The compliant use of data by lending institutions will become the focus, and some third-party data companies with a high degree of data homogeneity, poor uniqueness, and difficulty in meeting the current legal compliance requirements may be eliminated from the market
Therefore, when collecting user information, lending platforms must pay attention to personal information protection and compliance. Administrative violations are not terrible, and enterprises still have the opportunity to rectify, andOnce caught in the whirlpool of criminal proceedings, the survival of the entire enterprise will be in jeopardy