Privacy Protection in China's Cyberspace
January 31, 2003 | BY
clpstaff &clp articlesLegislative issues arising out of the popularity of the Internet in China include the thorny problems of privacy and the rights of the individual. The debate is more complicated in a State where the interests of society as a whole have always been seen as paramount.
It is generally accepted that the modern concept of personal privacy originated in western industrialized countries, which found that rapid economic growth and the resulting social change made legal protection for personal rights necessary.
The right of privacy under US law, for example, broadly includes: (1) the right to restrict public access to personal information (e.g., public disclosure of private facts is prohibited); (2) the right to be left alone (e.g., intrusion upon a person's solitude or seclusion is prohibited); (3) the right of protection of one's identity (e.g., appropriation of a person's name or likeness is prohibited); and (4) the right to private communications (e.g., intercepting and divulging private communications is prohibited).
By contrast, the "right of privacy" is not a distinct right specifically found in any existing PRC laws or regulations. Nor is the scope of protection of privacy expressly defined or readily ascertainable under current PRC law, despite the fact that the term "privacy" (yinsi) is frequently referenced in different PRC laws, regulations and judicial interpretations. The question here is whether or not the various rights encompassed by the "right of privacy" as described above in the US case are recognized and protected under PRC law. Further, how is the right of privacy in the online environment covered under China's Internet-related rules?
OVERVIEW
It is helpful to give an overview of the relevant rules applicable generally before discussing their application specifically to the Internet environment. Protection of the rights contained in the first three categories in the US law is found in PRC law in relation to the protection of "personal dignity" (renge zunyan), while the protection of the fourth category of right should be available in the form of the protection of the "freedom of communications and privacy of communications".
Personal Dignity
Protection of the right of privacy can be inferred from the PRC Constitution (the Constitution), which protects certain "fundamental rights" (jiben quanli) of citizens. For instance, Article 38 provides that a citizen's "personal dignity" is specifically protected as a fundamental right. Although the Constitution does not define what constitutes personal dignity, most Chinese legal scholars accept that personal dignity should include a person's privacy and therefore the Constitution should protect the right of privacy. This view is probably based on provisions in the PRC Civil Law General Principles (CLGP), which protects personal dignity and the "right of reputation" (mingyu quan). According to two judicial interpretations of the CLGP by the Supreme People's Court (SPC) in 1988 and 1993, the terms "personal dignity" and "right of reputation" are interpreted to include privacy.
Notably, under the above two judicial interpretations of the SPC, protection of privacy in the context of protection of personal dignity and the right of reputation are limited. An injured party, for example, is required to show actual damage to his/her reputation (i.e., defamation) before a cause of action can be established in relation to public disclosure of privacy information. In other words, mere public disclosure of private facts without showing damage to the injured party's reputation might not be actionable under the existing statutory rules.
However, this situation might change with a judicial interpretation issued in 2001 by the SPC concerning the issues of compensation of mental damages in civil infringement cases. Under this judicial interpretation, a court can hear a case involving an infringement of a person's privacy that violates "social public interests or social ethical standards". Despite the lack of a clear definition, the term "infringement of privacy" should be broad enough to include mere public disclosure of private facts and intrusion upon one's solitude or seclusion. Thus, if these wrongdoings transgress the bounds of the "social public interests or social ethical standards", the wrongdoer should be liable to compensate the mental damages suffered by the injured party regardless of whether or not the reputation of the injured party is damaged.
Further, appropriation of a person's picture or name is also protected under PRC law but such protection is not necessarily treated as protection of privacy information. Under the CLGP, a person's right of likeness (xiaoxiang quan) or right of name (xingming quan) is separately protected from infringement if his/her picture or name is used without authorization under circumstances including, among other things, commercial usage in the advertisement or promotion of products or services.
Interpretations of Freedom and Privacy
Article 40 of the Constitution specifically provides that PRC law protects freedom and privacy of communications of citizens and that no organization or individual may, on any grounds, infringe upon such rights. However, freedom and a guarantee of the privacy of communications are by no means absolute. Restriction on
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