Online Privacy in China

(IPRinfo 1/2012)

Perttu Virtanen
Postdoctoral researcher
Helsinki Institute for Information Technology HIIT, Aalto University

The economic and technological development in the People’s Republic of China also has its corollaries in the field of online activities.

This article is a summary of a wider article which depicts a number of central legislative acts and judicial measures in the People’s Republic of China that have a bearing on privacy, particularly on the Internet. The entire article is published on the website of IPR University Center .

The economic and technological development in the People’s Republic of China also has its corollaries in the field of online activities. The changes and rapid growth mark a period of historical transition in China. This is also seen in the adoption of the Internet for various means of communication therein.

Information Privacy and Chinese Law
The total number of Internet users in China has risen from 111 million users in December 2006 to 420 million in 3.5 years. The average weekly online time of net citizens is rising to 19.8h per person. The sheer number of users and the amount of online time are generating privacy concerns with regard to the Internet.

When facts about a person’s private life are published or otherwise communicated on the net by someone else, some aspects thereof may well be either unwanted or vehemently objected to by the individuals themselves. These aspects and concerns on what could be called information privacy within the Internet context have been given attention by both the legislature and the judicial system, amongst other actors in China.

The starting-point at the legislative level is the Chinese Constitution. The personal dignity and homes of citizens are regarded as inviolable, and the freedom and privacy of correspondence is guaranteed. The Constitution does not fully and expressly embrace all the aspects of information and communication privacy that may be triggered on the Internet, but there is partial and indirect recognition concerning several aspects thereof.

At the level of ordinary law, the proper starting point for China is the General Principles of Civil Law (GPCL) of 1986, a prominent means to tie together separate legislation in the area of civil law by expressing the general principles.

GPCL provides the theoretical and statutory framework for the development of all civil law in China and thereby serves as a foundation for the development and adoption of more specific rules. There is no direct provision for privacy, but the presence of the right to reputation has given rise to development and the acceptance of a parallel right of privacy in case law.

Intense internal debate
The evolution in case law has received parallel support from recent legislation. The New Chinese Tort Liability Law (TLL) of 2010 is a comprehensive enactment that imposes tort liability for diverse matters ranging from environmental damage and product liability to the mishandling of personal information. The right to privacy is included on the list of protected civil rights and interests.

Within the Internet context, the law also establishes the right of an injured party to recover damages from an Internet service provider that uses the Internet to infringe upon the civil rights and interests of another person.

There is also sector-specific legislation guaranteeing the appropriate handling of personal information and thereby protecting the privacy interests of individuals. Areas such as personal credit information and children’s data are good examples of the areas under regulation.

A draft Personal Information Act has been under preparation and discourse inside the Chinese government since 2005. Should it pass, it would eventually raise the level and consolidate the mechanisms of protection given to personal information to a more comprehensive legal framework on personal information protection.

The freshly issued, extant administrative decrees and guidelines on the subject, together with the case law and certain penal provisions introduced within Chinese criminal law in 2009, show that this rapidly developing and vast country is perhaps undergoing intense internal debate and deliberation on aspects of privacy online. The difficulty lies in finding the balance between protecting privacy online and in securing Internet the role as one of the important platforms for ongoing economic growth and development.