BYD Equation is controversial. Who does the driving data belong to？

An official statement issued by BYD Equation Leopard brand recently unexpectedly triggered a discussion on automobile data security.

On December 2nd, Equation Leopard responded to the "Equation Leopard’s 500km fuel consumption reached 18L" measured by an online blogger. Equation Leopard said in the statement that the blogger’s test at high speed involved speeding. Equation Leopard retrieved the relevant vehicle operation data at the request of the police and found that there were a lot of abnormal driving behaviors on the vehicle that day. Equation Bao explained the blogger’s abnormal driving situation in words and attached the original driving data map to the statement.

Equation Leopard is BYD’s personalized off-road brand, and Leopard 5 is the first product. The above statement of Equation Leopard is to show that the fuel consumption measured by bloggers is inaccurate through the announcement of abnormal driving conditions. However, this statement quickly triggered a discussion on the ownership of driving data in the industry. Some viewpoints point out that Equation Leopard made the driving data public before the police came to a conclusion, which was suspected of infringing on the driver’s privacy.

In fact, the discussion on data security and data privacy triggered by Equation Leopard is not the first time in the industry. When an automobile accident happens, companies have different ways to retrieve and publish data. There are examples where the owner’s driving data is released at the first time, like Equation Leopard, and there are also examples where the owner is accused of not providing the data for a long time, like Tesla.

Who does the user’s driving data belong to and how should it be used correctly?Behind the controversy caused by the equation leopard, it once again points to these focus issues.

1. Does Equation Leopard infringe the rights and interests of car owners?

Is the disclosure of the owner’s driving data in the official statement of Equation Leopard suspected of infringing the owner’s rights and interests? There are two main controversies about this issue.

First, it is necessary to determine whether the driving data belongs to the privacy or personal information of the user.Lu Wenliang, a special researcher in the automotive industry of the Industrial Science and Technology Innovation Center of the Strategic Consulting Institute of China Academy of Sciences, said that according to the Personal Information Protection Law, the driving data of the owner disclosed in the statement by Equation Leopard, including the time node and the driving speed, belong to the owner’s personal information, and in principle Equation Leopard should be kept confidential.

Some legal stakeholders also said that the personal information protected in the Personal Information Protection Law is divided into sensitive information and general information. Vehicle speed information is not sensitive information, but general information, which is not strictly confidential.

Another point of view is that Equation Leopard did not disclose the full name of the owner in the statement, but hid the middle field, which belongs to anonymous processing, so it is not included in the protected personal information. “(Data published by Equation Leopard)Driving data belonging to the background of the system, stored and produced in the background of car companies, are difficult to be completely defined as personal matters, and involve public safety, so it is difficult to apply to the protection of privacy or personal information rights. Wu Xindong, a deheng law offices lawyer, said.

Another controversial point is whether Equation Leopard has the right to announce users’ driving information before the police.Lu Wenliang said that from the statement of Equation Leopard, it indicated that the data was retrieved at the request of the police. According to the procedures for handling road traffic safety violations of the public security department, the public security department can require enterprises to provide corresponding evidence based on the need of investigating administrative violations. Equation Leopard is legal and compliant if it collects driving data and provides it to the law enforcement department of the case investigation. However, there is no clear support for whether it can be announced before obtaining the consent of the owner.

There are other views that car companies also have the right to disclose personal information because the dangerous driving behavior of the owner has threatened public safety. It is understood that some car companies and brands will unilaterally issue "privacy clauses", stipulating that personal information of car owners can be unconditionally released under special circumstances.

For example, the Privacy Clause issued by Great Wall Motor official website shows that it is directly related to national security and national defense security; Directly related to public safety, public health and major public interests; As well as directly related to judicial or administrative law enforcement such as criminal investigation, prosecution, trial and judgment execution, the sharing and public disclosure of personal information do not require authorization.

In addition, as a reference, this year, some car companies have announced the driving information of vehicles for accidents.For example, Tesla collided with 11 cars and the tank responded to the owner’s claim. In both cases, the car companies announced the owner’s driving information. However, a careful comparison shows that the statements of Tesla and Tanks are still different from those of Equation Leopard. Tesla and Tanks only described the driving information of vehicles in words, but did not publish the original background data of vehicles, while Equation Leopard published the original background data.

Second, car data privacy issues to be solved

Who does the driving data belong to? Who should retrieve and publish it? This is the core of all the arguments. According to the current relevant laws and regulations, when collecting personal information such as driving data, it must be approved by the owner, so it is generally considered that the owner is the owner of the data. However, the paradox is that when a vehicle has an accident, because the owner does not have professional technical means and equipment to retrieve the data, it can usually only be obtained through the car company. If the information between the user and the car company is opaque, there will be data disputes between the car company and the user.

The "roof rights protection" of Tesla owners is a typical data dispute case in the automobile industry in recent years.In this case, the car owner accused the car company of infringing personal privacy information, and at the same time, the car company also paid attention to whether the information disclosed by the car owner was sufficient.

At the Shanghai Auto Show in 2021, Ms. Zhang complained that Tesla’s brakes failed, and then Tesla provided the reporter of China Market Supervision with the data one minute before the vehicle accident and issued a written explanation. The data includes information such as the frame number, driving speed and when to brake of the vehicle involved. After the publication of this information, Ms. Zhang believed that Tesla made the driving data public and was suspected of infringing on her personal privacy, so she filed a lawsuit.

In the end, the court did not support Ms. Zhang’s claim, arguing that the data provided by Tesla could not be related to the owner’s personal private information. The relevant civil judgment shows that Tesla Company responded to Ms. Zhang’s query, and provided the vehicle data one minute before the vehicle accident, including the frame number, with a text description to the market supervision newspaper. The market supervision newspaper did not delete it or make subjective comments to publish it. From the content of this set of data and text description, it only described and explained the relevant data and could not be related to Zhang’s personal private information.

The content of Tesla’s complaint mentioned above is similar to the move of Equation Leopard to directly announce the owner’s driving information. However, there are differences between the two at the operational level. Tesla provided the data to the media at that time and released it by a third party. Equation Leopard directly released the background data through an official statement.

In the Tesla case, Ms. Zhang also accused Tesla of not disclosing enough information. Ms. Zhang pointed out that there are only 11 items of data provided by Tesla, among which there are many parameters of the braking system, such as the speed of motor torque, the data of kinetic energy recovery, and the stroke of the brake pedal. These data are the key to identify whether Tesla’s brakes are sensitive, but Tesla did not provide them. Ms. Zhang asked Tesla to provide a complete driving record 30 minutes before the incident, but it was never successful. The case is still on appeal.

Regarding driving data, "excessive disclosure" and "incomplete disclosure" will both cause controversy.The lack of specific provisions in laws and regulations is an important reason for this situation.

At present, in addition to the data security law, personal information protection law and other superior laws, the main document on data protection in the automobile industry is several provisions on automobile data security management.(Trial)》(abbreviation: "Regulations"). The Regulations were jointly issued by the National Internet Information Office, the National Development and Reform Commission, the Ministry of Industry and Information Technology, the Ministry of Public Security and the Ministry of Transport, and came into effect on October 1, 2021.

The "Regulations" require that car owners can consult or copy their personal information from car manufacturers according to law, and car companies are obliged to ask users before collecting their personal information, and collect it after obtaining the permission of users. And the state has the right to spot-check the implementation of relevant work of various car companies.

Lu Wenliang pointed out that due to the early formulation and the lack of rich data disputes as a reference, some provisions of the Regulations on driving data are relatively rough, and whether car companies are suspected of infringing on personal information rights and interests may depend on the judge’s own ruling.

At present, with the development of smart cars, there are more and more records of users’ driving data, which not only provides convenience for after-sales service, but also brings higher challenges to users’ privacy protection. Many users have noticed and initiated complaints about the problems such as the camera in the car recording the driver’s behavior and the third-party map software leaking the user’s driving trajectory.In order for smart cars to be truly accepted by users, it is imperative to solve the problem of data ownership and privacy security.

This article comes from WeChat WeChat official account:Economic observer (id: eeo-com-cn), author: Zhou Ju