Compensatory Damages in Personal Information Public Interest Litigation in China: Challenges and Prospects

Abstract： In contrast to private interest litigation， public interest litigation provides a more potent solution to personal information infringements marked by extensive scope， unspecified victims， and limited individual loss. However， compensatory damages remain a contentious issue， both in theory and in practice， within the legal framework of personal information public interest litigation. Through an empirical study conducted within China's judicial practice， this paper reveals that the pending issue concerning the nature and function of compensatory damages has caused highly contradictory verdicts regarding their calculation and allocation， as well as their relationship with other forms of pecuniary liabilities. Only by acknowledging the role of compensatory damages imposed in personal information public interest litigation as \"Skimming off Excess Profits\"， and affirming their function as deterrence rather than compensation can they truly achieve the broader objective of safeguarding personal information security and promoting public welfare， as well as avoid disrupting the harmony of the existing legal landscape.

Keywords： personal information protection; compensatory damages; public interest litigation; skimming-off excess profits; equal liability

CLC： D 912" " " DC： A" " " " " " " Article ID： 2096⁃9783（2024）06⁃0138⁃11

1 Introduction

Public interest litigation refers to the lawsuit filed by a specific organization to accuse the infringement upon social public interest as authorized by law[1]. In the digital era， personal information infringement stemming from illicit practices such as collecting， utilizing， and transacting has transcended the realm of private rights infringement and transformed into risks capable of endangering the broader public interest[2]. For example， the 20th National Congress of the Communist Party of China positioned personal information protection within the context of safeguarding national security and ensuring social stability. Consequently， the promulgation of the Personal Information Protection Law of the People's Republic of China （PIPL） in 2021 introduced public interest litigation to tackle the illegal processing of personal information， causing massive infringement1. This new legal avenue effectively addresses the limitations of private interest litigation， which typically evolves around disputes involving a specific number of plaintiffs and defendants. Private interest litigation inevitably shows inherent limitations on safeguarding personal information， especially when it comes to addressing personal information infringements characterized by extensive scope， unspecified victims， and limited individual loss2. Comparatively， public interest litigation stands out as a more effective mechanism for personal information protection.

In terms of the legal liability system of public interest litigation， compensatory damages represent the most debated form of liability， both in theory and practice. Given the inherent private-interest-oriented nature of civil liability， compensatory damages are not part of the legal tradition in public-interest litigation. Taking German as an illustration， prior to the 2002 amendment to the German Legal Advice Act， only injunctive remedies such as cessation of infringement， removal of obstacles， and elimination of danger shall be allowed in lawsuits filed by a public group[3]. When it comes to the imposition of compensatory damages in personal information public interest litigation， we can find that PIPL does not make detailed provisions to address issues such as their calculation and allocation， as well as how they interrelate with other forms of liabilities. Consequently， this lack of clear direction for the judiciary results in highly controversial verdicts. Therefore， there exists an immediate need to provide more specific guidance on judicial practice by developing comprehensive and appropriate regulations. This paper consists of five parts. The first part gives an overview of the discussed issue; the second part focuses on contentious judgments on the imposition of compensatory damages in personal information public interest litigation in China; the third part analyzes the underlying reasons for the existing controversial judicial practices observed; the fourth part proposes suggestions on how to develop detailed regulations with the aim of enhancing the proper implementation of such damages in practice based on the preceding analysis; and the fifth part concludes this paper.

2 Problems in the Judicial Imposition of Compensatory Damages in Personal Information Public Interest Litigation

Judicial research shows that there are two main obstacles in the imposition of compensatory damages in personal information public interest litigation： the ambiguity in judicial decisions regarding the relationship between compensatory damages sought for public and private interest， and the conflicting rulings concerning the interface of public interest compensatory damages with criminal confiscation of illegal gains.

2.1 Problem 1： Unclear Judicial Decisions Concerning the Relationship Between Compensatory Damages Sought for Public Interest and Private Interest

Ideally， public interest litigation should be a lawsuit dedicated to serving the public interest， while private interest litigation is launched to protect individual rights. However， the reasoning provided by judges for \"infringing upon public interest\" or \"compensating for public interest\" often appears oversimplified， leading to ambiguity regarding the distinction between compensatory damages sought for public and private interest. This justification can be categorized into two types. Firstly， some judges jump to the conclusion that violating personal information rights is equivalent to jeopardizing public interest without providing a more detailed explanation3. Secondly， others asserted that the action of the wrongdoers constitutes a breach of public interest when they infringe upon the rights of a large number of individuals4. Accordingly， some scholars raise doubts that personal information public interest litigation， to some extent， takes on the role of advocating for the private rights of individuals who have been infringed upon[4]. This serves as an indication of the unclear connection between compensatory damages sought for public interest and private interest.

The unspecified relationship between these two forms of liabilities is further illustrated by the shared basis on which the court determines their amount. PIPL stipulates \"benefits obtained by the personal information processor\" as a legal basis for calculating compensatory damages for infringed individuals5. Nevertheless， this basis， originally designed for private interest litigation， is widely applied in public interest litigation and gains widespread support from the judiciary6. Mathematically speaking， the amount of compensatory damages determined in public interest litigation through this approach is the sum of illegal profits obtained by the wrongdoer through infringing upon the personal information rights of multiple individuals. This indicates an overlap between compensatory damages sought for public interest and private interest.

However， the disposal of compensatory damages awarded in public interest litigation highlights that they do not truly serve to compensate individual victims. In practical terms， the adjudicating court employs various methods to allocate this compensation， such as remitting it to the state treasury7， depositing it into an account designated by the prosecution8， or using it to establish a dedicated fund to support public interest litigation9. However， not a single penny from these funds will find its way into the pockets of the affected individuals. In summary， the practice of utilizing calculation criteria initially intended for private interest litigation to determine compensatory damages in public interest litigation， yet refraining from distributing them to the infringed individuals， inevitably leads to a heightened risk of blurring the distinction between compensatory damages intended for public interest and those for private interest.

Furthermore， empirical findings indicate that there are instances where the defendants voluntarily pay compensatory damages to facilitate the withdrawal or settlement of public interest lawsuits10. Withdrawal and settlement are traditionally permissible methods for concluding private interest litigation. Applying these methods to end disputes concerning public interest inevitably brings about concerns that individuals' compensatory damages remedies cannot be realized due to the principle of \"res judicata\". \"Res judicata\" is an ancient Latin legal term， embodying the principle that once a matter has been adjudicated by a competent court， it shall not be reopened again in subsequent litigation. It is a fundamental rule in judicial proceedings， with the aim of ensuring the stability and finality of legal judgments and preventing the endless litigation of the same matter.

Consequently， several unresolved questions respecting the relationship between these two forms of liabilities follow： Firstly， after a public interest lawsuit is ended through approaches like settlement and withdrawal， do individuals retain the right to initiate a private interest lawsuit arising from the same misconduct？ Secondly， after a court awards compensatory damages in a public interest lawsuit， are affected individuals still permitted to pursue a damage compensation claim according to the same facts？ If an affirmative response is provided to the aforementioned questions， might it inadvertently aggravate the defendant's liability？ Conversely， if the answers are in the negative， could it potentially encroach upon an individual's entitlement to seek relief？ These undermined questions in judicial practice testify to the unclear relationship between compensatory damages claimed for public interest and private interest.

2.2 Problem 2： Contradictory Judicial Decisions over the Interface of Compensatory Damages Sought for Public Interest with Criminal Confiscation of Illegal Gains

Empirical research reveals that \"Criminal Incidental Civil Public Interest Litigation\" constitutes the dominant form of cases applying compensatory damage relating to personal information infringement. This represents a unique type of lawsuit in China， wherein a party is held accountable for both criminal and civil liability arising from a single action and consequently entails a joint adjudication of criminal and civil liabilities within a unified proceeding. Traditionally， the People's Procuratorate of China is responsible for filing charges against defendants in criminal proceedings. With the issue of PIPL， this institution is additionally empowered as the plaintiff to file public interest litigation. This means that a criminal lawsuit and a public interest litigation can be initiated within the same judicial procedure by procuratorate institutions. From a procedural standpoint， the consolidation of a criminal case and a public interest case into a single trial can expedite the judicial proceedings and optimize the utilization of judicial resources. This is the primary reason why most lawsuits are raised in this form.

In practice， contradictory judicial decisions greatly manifest over the interface between compensatory damage awarded in public interest litigation and criminal confiscation of illegal gains11. According to the Criminal Law of the People's Republic of China （Criminal Law）， there are six categories of statutory penalties， including \"probation\"， \"limited incarceration\"， \"fixed-term imprisonment and life imprisonment\"， \"death penalty\"， \"fines\" and \"deprivation of political rights\"， while criminal confiscation of illegal gains is not among them. Rather， it is more of a measure involving the mandatory transfer of property unlawfully obtained to the national treasury to prevent offenders from profiting from their unlawful actions[5]. In criminal proceedings， if the adjudicated court identifies the presence of illegal gains， it typically renders a judgment for criminal confiscation of illegal gains.

Because the amount of compensatory damages in most personal information public interest litigation is determined by \"benefits obtained by the personal information processor\"， which aligns with criminal confiscation of illegal gains， there have been divergent judicial decisions regarding the practical imposition between the two. The author categorizes these decisions into four categories （Table 1）.

Based on empirical analysis， it has been observed that cases falling under category A have ruled that compensatory damages in public interest litigation and criminal confiscation of illegal gains can be applied together because they represent civil and criminal responsibilities， respectively. For example， in the People's Procuratorate of Qingtongxia City， Ningxia Province. v. Zhang， et al.， a case from Typical Cases of Personal Information Public Interest Litigation released by the Supreme People's Procuratorate of China （SPP） in 2023， the court held that \"illegal gains are unlawfully acquired assets obtained through the perpetration of criminal activities， and compensatory damages refers to the civil liability that individuals must assume for causing harm to the public interest\".

Apart from category A， cases in categories B， C， and D all avoid duplicating liabilities for offenders， but with various justifications. In category B cases， the procuratorate refrained from claiming compensatory damages， leaving no room for the court to issue such a ruling. In cases where compensatory damages were sought by the procuratorate， diverse judgments were observed. Category C cases involved the court granting compensatory damages while declining to impose criminal confiscation of illegal gains. Category D cases are those where the court explicitly dismissed the claim for compensatory damages， reasoning that these penalties overlap and， when applied concurrently， intensify the liabilities against the defendant.

Table 1" The Imposition of Compensatory Damages and Confiscation of Illegal Gains in Criminal Incidental Civil Public Interest Litigation12

[Judicial Practice Case No A： The procuratorate initiated a compensatory damages claim， which the court upheld while simultaneously rendering a judgment on criminal confiscation of illegal gains Apply public interest compensatory damages and criminal confiscation of illegal gains together The People's Procuratorate of Shanghai Baoshan District. v. Han， et al.， （2019） Hu 0113 Criminal First Trial No. 2482 The People's Procuratorate of Guangdong Luohu District. v. Li， （2020） Yue 0303 Criminal First Trial No. 445 The People's Procuratorate of Sixian City， Anhui Province. v. Bo， （2022） Wan 1324 Criminal First Trial No180 B： The procuratorate did not claim compensatory damages and solely pursued formal apology relief， while the court， adhering to the principle of \"no complaint， no review，\" refrained from ruling on compensatory damages and merely ordered criminal confiscation of illegal gains Apply criminal confiscation of illegal gains The People's Procuratorate of Baoji City， Shanxi Province. v. Chen， et al.， （2020） Shan 03 Criminal Final No. 326 The People's Procuratorate of Zhuang'lang City， Gansu Province. v. Jiang， （2022） Gan 0825 Criminal First Trial No. 26 C： The procuratorate initiated a compensatory damages claim， which the court upheld while abstaining from making a ruling on criminal confiscation of illegal gains

Apply public interest compensatory damages The People's Procuratorate of Jiangmen City， Guangdong Province. v. Zhang， （2021） Yue 0705 Criminal First Trial No.708 The People's Procuratorate of Shahekou City， Liaoning Province. v. Zhang， （2021） Liao 0204 Criminal First Trial No.415 The People's Procuratorate of Shanhe City， Shandong Province. v. Wang， et al.， （2021） Lu 0126 Criminal First Trial No.221 D： The procuratorate initiated a compensatory damages claim， which the court dismissed on the ground that illegal gains had been confiscated Apply criminal confiscation of illegal gains The People's Procuratorate of Shaoguang City， Guandong Province. v Liu， et al.， （2021） Yue 02 Criminal Final No. 237 ]

3 Underlying Causes of Inaccurate Imposition of Compensatory Damages in Personal Information Public Interest Litigation

The absence of detailed provisions leads to a situation where the court does not have adequate guidance on how to award compensatory damages， thereby giving rise to highly controversial court practices. Therefore， it becomes imperative for China to develop more comprehensive regulations pertaining to the application of compensatory damages in personal information public interest litigation. Before delving into how to formulate specific rules， it is necessary to initially scrutinize the underlying causes behind the current state of disordered judicial practices.

3.1 Failure to Acknowledge the Distinctive Functions of Compensatory Damages Sought for Public Interest and Private Interest

The phrases \"infringing upon public interest\" and \"compensating for public interest\" are frequently employed as the basis for granting compensatory damages in personal information public interest litigation. Nevertheless， the rationale supporting this justification， as presented by adjudicated judges， tends to be overly simplistic， which actually arises from a failure to acknowledge the different functions of compensatory damages claimed for public interest and private interest.

3.1.1 Misconceiving the Feasibility of Monetary Compensation in Addressing Impaired Public Interest

Broadly speaking， the injury suffered from a civil infringement may be physical， emotional， or involve property losses[6]. There is thus a general consensus that compensatory damages are typically awarded to cover the total loss caused by the infringing party， with the aim of restoring the rights holders to the position they would have been in but for the defendant's misconduct[7]. However， in the era of the digital economy， personal information has broken the limit of private rights and evolved into a form of rights imbued with public interest significance. Consequently， the harm caused by the illicit processing of personal information goes beyond the simple accumulation of individual losses and represents a significant threat to both social stability and national security. Such misbehavior has the potential to trigger a state of \"mass panic\" and jeopardize national information security. That is precisely why the 20th National Congress of the Communist Party of China positioned personal information protection within the context of safeguarding national security and ensuring social stability. In private interest litigation， compensatory damages are intended to cover loss incurred due to infringements. However， damage compensation with a purely property-based attribute reveals a deficiency in addressing the harm inflicted on national security and social stability pertaining to personal information.

The Supreme People's Court of China （SPC） has established explicit guidelines regarding the implementation of compensatory damages in environmental protection public interest litigation. The compensatory damages awarded in environmental protection public interest litigation include expenses for restoring the ecological environment， such as cleaning， transporting， temporarily storing， and properly disposing of pollutants involved13. The rationale behind these expenses becomes readily apparent when considering their necessity in mitigating the ongoing consequences of environmental pollution and restoring the disrupted ecological balance[8]. Nonetheless， monetary compensation displays inadequacies in addressing the damages within cases involving the public interest of personal information.

It is worth mentioning that the limitations of monetary compensation in addressing the compensation and restoration requirements for personal information security and order have prompted the judiciary to proactively seek more effective approaches to assigning responsibility. As an alternative to monetary compensation， practices such as \"behavioral compensation for losses\"14 and \"rectification commitments\"15 have been adopted in certain cases. Compared with monetary compensation， the rectification and standardization of personal information processing practices hold greater potential for safeguarding personal information security and order. This approach also aligns more effectively with the purpose of public interest litigation in safeguarding the common good.

3.1.2 Dismissing that \"Deterrence\" Rather than \"Compensation\" is the Fundamental Function of Compensatory Damages in Personal Information Public Interest Litigation

Public interest litigation's significance as a complementary component to the personal information protection framework lies in its ability to effectively address situations where damages extend across a broad scope but individual losses remain limited. Limited individual losses indicate that only a small number of affected individuals are willing to take legal action to seek compensation for their specific losses. This highlights the challenge faced by the traditional mechanism of private interest litigation in handling personal information infringements[9]. Therefore， compensatory damages in public interest litigation serve a broader purpose than just assigning responsibility to wrongdoers; they also play a critical role in enhancing supplementary deterrence. They serve as a mechanism to discourage the defendant and other potential offenders by highlighting the tangible consequences of their actions and underscoring the broader implications of disregarding personal information protection.

Accordingly， the author contends that the primary purpose of compensatory damages in public interest litigation is not to provide monetary compensation for the incurred harm; rather， they should be considered as a deterrence measure with the aim of restoring disrupted order and mitigating potential risks. Although it is a common stance in judicial practice to view compensatory damages in public interest litigation as a means of compensating the harmed public interest， this perspective often encounters a challenge due to the absence of distinct victims or readily quantifiable economic damages. In reality， the role of compensatory damages goes beyond mere compensation and actually serves the purpose of rectifying the negative effects of the wrongdoer's misconduct， thereby reinforcing their deterrent function.

3.2 The Lack of an In-depth Review on the Interconnection between Compensatory Damages Sought for Public Interest and Other Pecuniary Liabilities

Within the legislative system of China， the division between pecuniary liability and non-pecuniary liability stands as a fundamental method for categorizing legal responsibilities. Pecuniary liabilities involve financial responsibility for consequences resulting from one's legal violations. Underpinned by China's historical reliance on sector-based legislative practices， pecuniary liability can be found in civil， criminal， and administrative domains. It is important to note that this study exclusively focuses on the analysis of pecuniary liability within criminal and civil law， with administrative liability falling beyond its scope. Given that \"Criminal Incidental Civil Public Interest Litigation\" constitutes the prevalent form of cases relating to personal information infringement， the potential pecuniary liabilities broadly consist of fines16， criminal confiscation of illegal gains， as well as compensatory damages claimed for public interest and private interest. Fines， as a form of criminal penalty serving a punitive function， typically coexist with the others. The key areas of controversy in judicial practices primarily center around whether the three remaining pecuniary liabilities can be combined.

3.2.1 Stick Rigidly to the \"Criminal-Civil Distinction\" Principle

Our legal system distinguishes criminal law from civil law， as well as criminal commitment from civil commitment[10]. In simple terms， civil law governs private conduct among individuals and organizations， while criminal law concerns punishments for crimes. In consideration of their differences in attributes and functions， Article 187 of the Civil Code of China provides that the imposition of criminal responsibility does not exempt the wrongdoer from civil responsibility， and a similar provision can also be found in Article 36 of the Criminal Law17.

It has been previously clarified that compensatory damages， when claimed for the sake of the public interest of personal information protection， deviate from the standard civil liabilities that seek to recompense specific losses incurred by the infringement. However， certain judges dismissed the unique nature of such damages and have erroneously treated them as if they were conventional civil liabilities akin to compensatory damages in private interest litigation. This misinterpretation stems from rigid adherence to \"Criminal-Civil Distinction\"， a principle underpinned by China's historical reliance on department-based legislative systems. Regrettably， this adherence has led to adverse consequences， primarily manifesting in the simultaneous grant of compensatory damages sought for public interest alongside the imposition of criminal confiscation of illegal gains. This misguided practice proves inadequate in meeting the contemporary imperative of upholding the security of personal information. Moreover， it runs the risk of burdening wrongdoers with disproportionate liabilities， thereby raising concerns about the fairness and proportionality of such an approach. To succinctly conclude， more effective integration of pecuniary liabilities in personal information public interest ligation can only be achieved by breaking down the constraints imposed by the \"Criminal-Civil Distinction\" principle.

3.2.2 Disregarding the Principle of \"Equal Liability\"

Engaging in illegal personal information processing may trigger a range of pecuniary liabilities at the same time. However， it is an overly simplistic notion that escalating penalties inherently curb illicit actions. Instead of adhering to a perspective overly centered on \"Criminal-Civil Distinction\"， the principle of \"Equal Liability\" serves as a safeguard against disproportionate liabilities[11]. Underlying this principle is the recognition that there exists a threshold beyond which intensifying legal penalties becomes ineffective in deterring wrongful actions[12]. Nonetheless， a significant number of judges have disregarded the principle of \"Equal Liability\"， resulting in contradictory legal verdicts regarding the interplay of compensatory damages sought for public interest with other pecuniary liabilities. Such a practice not only fails to foster a balanced information economy but also lacks the capacity to effectively deter personal information processors. Therefore， in the field of personal information protection， it becomes necessary to clarify the procedure priority and amount of discount of pecuniary responsibilities involved through the diligent application of the principle of \"Equal Liability\".

4 Suggestions on Legislative Improvement for Compensatory Damages in Personal Information Public Interest Litigation

The author asserts that the initial and crucial step in properly establishing a well-defined compensatory damages system for personal information public interest litigation is to clarify the nature of compensatory damages sought for the public interest. Skipping this step and directly examining their interconnection with other pecuniary liabilities would be akin to \"seeking fish from a tree\".

4.1 Position the Nature of Compensatory Damages in Personal Information Public Interest Litigation as \"Skimming-Off Excess Profits\"

Prior to the 19th century， public interest litigation primarily centered around injunctive relief like cessation of infringement， removal of obstacles， and elimination of danger， with claims for compensatory damages generally being prohibited[3]. As the 20th century unfolded， certain countries began to introduce compensatory damages within specific types of group litigation， which can be classified into two distinct modes.

The first mode， as observed in jurisdictions like Japan， the European Union， and Taiwan of China， involves the establishment of provisions where a designated entity can collectively claim compensatory damages， provided it obtains authorization from the natural persons holding the substantive rights. But any compensation awarded must then be distributed to the actual rights holders. For instance， Article 80（1） of the General Data Protection Regulation （GDPR） issued by the European Union stipulates that the data subject shall have the right to mandate a representative organization to exercise the right to receive compensation on his or her behalf， while Article 80（2） of GDPR further clarifies that the representative organization has the right to lodge a non-compensation complaint independently of a data subject's authorization. Similarly， under Article 34（1） of the Personal Data Protection Act of Taiwan， written authorization from twenty or more affected individuals is required as a prerequisite for initiating a compensation claim by a public interest association as authorized by law.

This sort of legal mechanism can be termed \"representative litigation\"， which essentially entails a form of private interest litigation involving multiple plaintiffs. In China， the Civil Procedure Law of China also recognizes representative litigation as an option in cases where numerous parties are involved in a joint lawsuit18. These parties have the discretion to designate a representative or representatives to initiate and participate in the lawsuit， and the actions taken by these representatives will be binding on all the parties they represent. Representative litigation could offer a viable solution for addressing personal information infringements characterized by extensive scope and limited individual loss. Nevertheless， it is crucial to emphasize that representative litigation fundamentally differs from the nature of public interest litigation discussed in this paper， and thus the first mode does not serve as a point of reference.

The second mode， as demonstrated by Germany's 2004 amendment to the Anti-Unfair Competition Law， introduces a novel legal mechanism called \"Abschöpfungsanspruch\"， or \"Skimming-off Excess Profits\" in English. This mechanism is designed to bridge the gap in remedies that arise from minor and dispersed damages by allowing courts to order wrongdoers to disgorge or forfeit the ill-gotten profits they obtained through unfair competition[13]. The author asserts that \"Skimming-off Excess Profits\" provides an appropriate perspective to define the nature of compensatory damages awarded in personal information public interest litigation. The rationale behind this assertion is as follows：

Firstly， the public nature of personal information in the digital era implies that the central conflict addressed by personal information public interest litigation extends beyond disputes between wrongdoers and individual subjects. Instead， its overarching objective is to deter improper personal information processing behaviors and mitigate potential risks. Consequently， the accurate understanding of the function of such damages is more about deterrence than mere compensation. This deterrence function seeks to dissuade not only the defendant but also potential wrongdoers by eliminating the unlawful gains obtained through illegal personal information processing[14]. From that perspective， the concept of \"Skimming off Excess Profits\" provides an appropriate characterization of the nature of compensatory damages awarded in personal information public interest litigation.

Secondly， it's crucial to acknowledge that expecting public interest litigation to address and resolve all damages stemming from personal information infringement is both unrealistic and unreasonable， especially when the current legal system of China already offers enough remedy options for individuals to seek damage compensation. Positioning the nature of compensatory damages in public interest litigation as \"Skimming off Excess Profits\" can greatly avoid disrupting the harmony of the existing legal landscape.

On the one hand， China offers representative litigation as a mechanism for handling cases involving numerous individuals. Both representative litigation and public interest litigation serve the purpose of mitigating the adverse effects of the \"silent majority\". However， when it comes to compensating the infringed individuals， representative litigation stands out as a more effective approach. This is because the damage compensation awarded in public interest litigation is consolidated into a designated account instead of being distributed directly to individual victims.

On the other hand， the issue of insufficient incentive for individuals to bring forward personal information lawsuits could also be effectively addressed through the \"prejudicial effect of confirmed facts\" provisions established in China. According to Article 16 of Interpretation of the SPC on Several Issues Concerning the Application of Law in the Trial of Civil Public Interest Actions Regarding Consumption， the plaintiff doesn't have to assume the burden of proof for facts that have been identified in an effective judgment of a public interest litigation， unless the party involved raises an objection to such facts and provides contrary evidence sufficient to reverse such facts. Similarly， Article 10 of Provisions by the SPC on Evidence in Civil Procedures stipulates that \"the facts that have been proved in the valid notary documents need not be proved by the parties\". This approach， which extends the application of facts identified in an effective judgment to another lawsuit， shares similarities with the two-stage adjudication model used in handling consumer lawsuits involving multiple plaintiffs in certain foreign jurisdictions. For example， France and Japan employ this two-stage litigation model in consumer group lawsuits， where the first stage， launched by a designated association， determines whether the business entity has illegal activities and the second stage is initiated by affected consumers to claim for individual compensation. It is evident that the legal framework embodied in the \"prejudicial effect of confirmed facts\" provisions is sufficient to effectively address the issue of insufficient incentives for private interest litigation while remaining consistent with the existing legal structure. To conclude， since the current legal system already offers enough options for individuals to seek damage compensation， an excessive involvement of public interest litigation could disrupt the harmony of the existing legal landscape.

Given these considerations， the author suggests that the nature of compensatory damages in personal information public interest litigation should be defined as \"Skimming off Excess Profits\". This option not only serves the purpose of effectively deterring unlawful offenders but also avoids disrupting the harmony of the existing legal landscape.

4.2 Clarify the Calculation Basis and Allocation of Compensatory Damages Awarded in Personal Information Public Interest Litigation

Once compensatory damages awarded in personal information public interest litigation are defined as \"Skimming off Excess Profits\"， the process of determining their amount becomes straightforward， relying on the basis of \"Benefits Obtained by the Personal Information Processor\". However， the question of how to dispose of them remains unresolved. Under the conventional theory of \"Party Standing\"， which asserts that the right to initiate a civil suit stems from existing substantive rights as authorized by law， the party capable of bringing a civil lawsuit before the court in their own name is the entity with a direct interest in resolving the underlying dispute through the legal process. Nevertheless， there exists a separation of substantive rights holders from the initiators of the lawsuit in public interest litigation， resulting in a pending issue regarding the allocation of compensatory damages.

In personal information public interest litigation， the judiciary mainly employs three methods to distribute compensatory damages， including remitting them to the state treasury， depositing them into an account designated by the prosecution， or establishing a dedicated fund to support public interest litigation. From a practical standpoint， opting to establish a special fund appears to be a more sensible legislative choice. The reason is that such a fund can be utilized for various purposes， including covering public interest litigation expenses and facilitating personal information protection publicity. In conclusion， establishing a dedicated fund proves to be a more effective approach to achieving the goal of upholding public welfare within the realm of personal information protection compared to the alternative of simply transferring funds to the state treasury.

4.3 Clarify the Interconnection Between Compensatory Damages Sought for Public Interest and Criminal Confiscation of Illegal Gains

Criminal confiscation of illegal gains is not a statutory criminal penalty but rather a legal measure rooted in the principle of \"No Profit from Illegal Acts\". In cases trialed in the form of \"Criminal Incidental Public Interest Litigation\"， both criminal confiscation of illegal gains and public interest compensatory damages are determined based on the illegal profits from the infringement. Given that public interest and compensatory damages are defined as \"Skimming off Excess Profits\"， the connection between these two becomes evident.

Both of them are grounded in the fundamental principle of \"No Profit from Illegal Acts\"， and serve a shared deterrent function against illegal behaviors. Therefore， in cases where both of them arise from the same unlawful act， there may be no necessity to apply them concurrently. Otherwise， it could lead to a departure from the principle of \"Equal Liability\"， potentially imposing excessive liabilities on the defendant.

Although criminal confiscation of illegal gains and compensatory damages in public interest litigation share a similar function， the question of which of the two should be applied remains unresolved. The author advocates for the preference of the latter. The rationale behind this choice lies in the fact that the former can only be funneled into the state treasury， whereas the latter can be directed into a dedicated fund. This disposal approach better aligns with the broader goals of personal information security and public welfare compared to the simple transfer of funds to the state treasury.

4.4 Clarify the Interconnection Between Compensatory Damages Sought for Public Interest and Private Interest

The relationship between compensatory damages claimed for public interest and private interest is the final piece of the puzzle within the legal framework of personal information public interest litigation. Regarding the question of whether these two types of compensatory damages overlap， some scholars have suggested that they are independent and should be subject to a discount. However， the author disagrees with this viewpoint， asserting that these two forms of liabilities serve distinct functions and can be imposed simultaneously.

Public interest compensatory damages are primarily aimed at deterring unlawful actions by deprivation offenders of profits arising from their misbehaving， while such damages awarded in private interest litigation are designed to compensate individuals for their actual losses. It should not be assumed that these two forms of liability overlap and necessitate offsetting simply because they are calculated using the same basis. In essence， the harm endured from the infringement is not inherently linked to the unlawful gains obtained from it. For instance， even if the defendant derives no profit from processing personal information unlawfully， it cannot be concluded that the affected individual has suffered no harm. The reason why PIPL stipulates \"Benefits Obtained by the Personal Information Processor\" as the basis for calculating compensatory damages is to alleviate the burden of proof on the injured party by offering an alternative choice beyond \"Individual Losses Suffered\". As a result， compensatory damages claimed for public interest and private interest can coexist since they serve different purposes and functions.

5 Conclusion

In the digital era， personal information has broken the limit of private rights and evolved into a form of rights imbued with public interest significance. Fortunately， public interest litigation has been introduced as an effective complement to traditional relief paths， which have shown deficiencies in addressing personal information infringements characterized by extensive scope， unspecified victims， and limited individual loss. However， the judicial imposition of compensatory damages in public interest litigation results in highly contradictory verdicts regarding their nature， calculation， distribution， and relationship with other forms of monetary liabilities. The underlying causes of these contradictory judicial decisions can be attributed to a failure to acknowledge the unique function and role of compensatory damages claimed for public interest， as well as a lack of in-depth examination of the interconnection mechanism of compensatory damages with other pecuniary liabilities in personal information public interest litigation.

To address these challenges， the initial and crucial step is to clarify the nature of compensatory damages awarded in personal information public interest litigation. The author contends that the nature of such damages should be defined as \"Skimming off Excess Profits\". This option not only serves the purpose of effectively deterring lawbreakers but also avoids disrupting the harmony of the existing legal landscape. Building on this acknowledgment， the number of such damages should be decided by \"Benefits Obtained by the Personal Information Processor\". Regarding their attribution， establishing a dedicated fund proves to be a more effective approach to achieving the goal of upholding public welfare within the realm of personal information protection. In terms of the interconnection between compensatory damages sought for public interest with other pecuniary liabilities， the principle of \"Equal Liability\" should serve as the guiding principle to prevent disproportionate liabilities.

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我国个人信息公益诉讼损害赔偿责任的适用困境与消解路径

起海霞

（华东政法大学 知识产权学院，上海 201620）

摘" " 要：与传统的私益诉讼相比，公益诉讼为侵害范围广泛、被侵权主体不确定且个体经济损失有限的个人信息侵权案件提供了更为有效的救济路径。然而，在个人信息公益诉讼案件中，损害赔偿责任的适用在理论上和实践中还存在诸多争议。实证研究发现，我国司法机关对于个人信息公益诉讼中损害赔偿责任的功能和性质存在不同理解，导致实践中出现了大量关于其计算、归属及与其他财产责任衔接的冲突裁决。只有将个人信息公益诉讼中损害赔偿责任的性质界定为\"撇去不法利益\"，并肯定其功能在于威慑而非补偿，才能真正实现维护个人信息安全、促进公共利益的目的，还能有效避免与现有法律体系的冲突。

关键词：个人信息保护；公益诉讼；损害赔偿；撇去不法利益；公平责任