关键词: 生成式人工智能, 知情同意, 正当利益规则, 数据治理, 中欧比较

Abstract: The rapid development of generative artificial intelligence (GAI) poses significant challenges to traditional informed consent rules. The European Union (EU) addresses this tension through the “legitimate interest rule” established under the General Data Protection Regulation. The EU effectively reconciles data protection with technological innovation by adopting an openstructured framework and dynamic balancing mechanisms. In contrast, China’s Personal Information Protection Law diverges from the EU counterpart in terms of the data processing lawfulness, rendering informed consent rules challenging to meet the demands of largescale data processing in the context of GAI. The EU’s approach is rooted in its governance doctrine that harmonizes rights protection with risk management, alongside an economic logic prioritizing a unified market. China adopts a riskbased regulatory strategy and has developed a “strong protection, weak circulation” regulatory model. To address the technical complexities of GAI, China should construct a localized legitimate interest rule which is confined to applications in commercial scenarios. This framework would incorporate a threetiered analysis—interest test, necessity test, and balance test—supported by risk mitigation measures and accountability mechanisms. Such institutional innovation would overcome the consent application dilemma while enabling adjudication to dynamically balance data subjects’ rights, commercial interests, and public values casebycase. This solution offers both a theoretical framework and practical feasibility for optimizing data governance in the AI era.

Key words: generative artificial intelligence, informed consent, legitimate interest rule, data governance, ChinaEU comparative analysis