Privacy rights have been available to Chinese citizens under the Constitution and other legal regulations since the 1980's. However, due to the size and strength of government, as well as a general reluctance in the past to litigate, the laws have not been tested to a great extent. The legislature is in the process of developing broader privacy rights under a Civil Code.
Privacy rights have been available to Chinese citizens under the Constitution and other legal regulations since the 1980's. However, due to the size and strength of government, as well as a general reluctance in the past to litigate, the laws have not been tested to a great extent. The legislature is in the process of developing broader privacy rights under a Civil Code. These new rights have the potential to shift privacy power towards the citizens for the first time since the founding of the Communist Party of China.Constitution
The personal dignity of citizens of the People's Republic of China is recognized and protected under Article 38 of the Constitution. Further, the freedom and privacy of correspondence of citizens of the People's Republic of China are protected; however Article 40 provides some significant limitations to such rights – where state secrets or a criminal investigation is involved, police and other authorities can intercept communications as necessary. The expansive concept of “state secret” gives the government supreme power in reviewing and monitoring of communications as necessary.
Civil Law
The General Civil Law Rule of China recognizes the right to identity and the right to protection of reputation. The People’s Supreme Court has not treated privacy as a separate right until now either - it treats a claim to privacy violation akin to that of violation of one’s reputation under its relevant judicial interpretations. This means that under current law, an action for privacy violation can be considered by a court only if the plaintiff’s reputation has also been violated or affected. The limitations imposed by such a view are obvious.
Network Privacy in China
E-commerce and general online activity has been developing rapidly in China. China is estimated to now have the largest number of regular Internet users in the world, with the figure estimated at being over 300 million as of 1 June 2008. Unfortunately, given the relatively lengthy time it takes to enact national laws in China, the legislation has not kept up to date with these developments.
Although China lacks major privacy and data protection laws as discussed above, some regulations are in place in relation to network information. The Regulation on Management of the Administration of Internet Electronic Messaging Services issued by Ministry of Information Industry on 8 October 2000 is worth looking at. Article 12 states that Electronic Messaging Service providers shall maintain the confidentiality of personal information concerning online subscribers and may not disclose the same to third parties without the subscribers' consent.
This provision alone has led many Chinese website operators to post privacy policies on their sites, similar to those appearing on sites managed in the US, Australia, Europe and Hong Kong, where more developed data protection and privacy rules are in place. However, compliance with these policies is largely determined by the website operators themselves, as the regulatory requirements and enforcement of them, are weak.
Likely Future Developments
Comprehensive legal protection for the privacy of citizens has become a major focus of the Chinese legislature, given the rapid development of Internet, the ease of the dispersion of large amounts of data and other issues.
At present, China is drafting a new Civil Code; the privacy issues are introduced as follows in the latest draft of this regulation: “Natural persons enjoy privacy; privacy is constituted by personal data, personal activities and personal space; collection, saving and publication of personal data, shall be consented to by the data-subject in all cases”.
It is hoped that guidelines will be developed around the new Code, similar to those that are seen operating in Hong Kong under its Data Protection Ordinance.
ABOUT THE AUTHOR: Yu Du and Matthew Murphy
The MMLC Group is a unique combination of leading Chinese and English speaking international and local lawyers, trademark agents, patent attorneys, scientists, engineers, accountants and business consultants, working together to deliver powerful and results-driven legal and business services for many of the world's leading companies, institutions and government groups.
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