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5 May, 2017
On 15 March 2017, the Fifth Session of the 12th National People's Congress of the People's Republic of China adopted The General Provisions of the Civil Law of the People's Republic of China (hereinafter the “General Provisions of the Civil Law”). The General Provisions of the Civil Law is the most fundamental and framework legislation in civil law and is a milestone in the history of civil legislation in China. In response to the digital era, the General Provisions of the Civil Law now includes provisions on the protection of privacy, personal information and data.
Right to Privacy
The General Principles of the Civil Law of the People's Republic of China enacted in 1986 did not explicitly stipulate a natural person’s right to privacy. In following judicial interpretations1and legal practices, where the infringement on privacy met certain criteria, it would constitute infringement on the rights of reputation. In order to strengthen the protection to the right to privacy, the Tort Liability Law of the People's Republic of China (“Tort Liability Law”) published in 2009, for the first time formally protects the right to privacy as an independent civil right. The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases involving Civil Disputes over Infringements upon Personal Rights and Interests through Information Networks released in 2014 includes specific stipulations on the infringement on the right to privacy on networks.2 The General Provisions of the Civil Law, continuing the stipulations in the Tort Law and aforementioned judicial interpretations, stipulates the right to privacy as an independent civil right. In the first paragraph of Article 110, a natural person among other rights, enjoys the rights of life, inviolability and integrity of person, health, name, likeness, reputation, honor, privacy, and marital autonomy.
Personal Information
Article 111 of the General Provisions of the Civil Law provides “the personal information of a natural person shall be protected by law. Any organization or individual which needs to obtain the personal information of other persons shall legally obtain and ensure the security of such information, and shall not illegally collect, use, process, or transmit the personal information of other persons, nor illegally buy, sell, provide, or publish the personal information of other persons.”
There was no provision on personal information protection in the General Provisions of the Civil Law (First Review Draft)3 released on July 5, 2016. During the draft deliberation process，some members of the Standing Committee and some government authorities, legal education and research institutions, and citizens pointed out that, illegally obtaining, selling or providing personal information to others has been a rampant problem for a long time, which has caused severe harm to the society, and suggested to further reinforce the protection of personal information. After research, the Legal Affairs Committee considered that the right to personal information is an important right of citizens in a modern information society. Explicit protection of personal information has practical application in the protection of personal dignity, protecting citizens from illegal disturbances and maintaining a normal social order.4 Therefore, the General Provisions of the Civil Law (Second Review Draft) published in November 2016 added that “the personal information of a natural person shall be protected by law. Any organization or individual shall not illegally collect, use, process, or transmit the personal information of other persons, nor illegally buy, sell, provide, or publish the personal information of other persons. ” In the General Provisions of the Civil Law (Forth Review Draft) published in 2017, the aforementioned stipulations were further supplemented and added that “any organization or individual shall ensure the security of information legally obtained.” Before the promulgation of the General Provisions of the Civil Law, a set of laws, regulations and rules, such as the Decision of the Standing Committee of the National People's Congress on Strengthening Information Protection on Networks, the Law of the People's Republic of China on the Protection of Consumer Rights and Interests and the Cybersecurity Law of the People's Republic of China, have provides network operators’ obligations of personal information protection. The adoption General Provisions of the Civil Law further grants personal information right the position of a fundamental civil right.
Data
Article 127 of the General Provisions of the Civil Law provides that “where any laws provide for the protection of data and virtual property, such laws shall apply.” The General Provisions of the Civil Law (First Review Draft) published on July 5, 2016 has treated and protected “data information” as a type of intellectual property. However, this provision generated theoretical controversy. Data is considered different from intellectual property, as the former is description or record of characters of objects, while the nature of the latter is a person’s intellectual achievement. Therefore, the General Provisions of the Civil Law (Second Review Draft) separates data from intellectual property and protects data independently. However, data and is provided in conjunction with intellectual property rights in Article 127, and it is unclear so far what the relationship is between data and network property and whether data shall be regarded as a kind of virtual property.
Prospect
Before the promulgation of the General Provisions of the Civil Law, personal information was mainly protected through the criminalization of selling or obtaining personal information as well as regulations on protection of personal information in certain industries or certain types of personal information by the relevant industrial regulatory authorities. The General Provisions of the Civil Law separates personal information rights from privacy rights, affirms the independent position of the right to personal information, and reflects the demand for the protection of personal information and data in an internet and big data era.
Meanwhile, the General Provisions of the Civil Law may also bring new theoretical questions and practical challenges. It remains to be seen how the relationships among privacy, personal information and data will be defined and how the protection of these rights will evolve in legal practice. We will continue to monitor and follow up on critical issues – for example how the ownership of data will be defined and protected, and whether problems in previous privacy tort litigations, such as the difficulties in proving and defining tort damages which are often minimalized, would be better solved by treating the right to personal information as an independent civil right, and whether such protections of the right to personal information would enable more remedies when such rights are infringed.
1.According to the Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (For Trial Implementation),In case anyone disseminate the privacy of any other person in writing or orally, or fabricate the fact to defame the personality of other person overtly, or damages other person's reputation by ways of insulting and slandering, which has practical impact, such act constitutes act infringing the citizen's right of reputation.
2.According to Article 12 of Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases involving Civil Disputes over Infringements upon Personal Rights and Interests through Information Networks, “where a network user or NSP discloses through network a natural person's individual privacy such as genetic information, medical records, health inspection materials, criminal records, home address, and private activities, or any other personal information, which causes damage to any other person, and the infringed party requests the assumption of tort liability by the network user or NSP, the people's court shall support such a request.”
3.http://www.npc.gov.cn/npc/lfzt/rlyw/2016-07/05/content_1993427.htm
4.http://www.npc.gov.cn/npc/cwhhy/12jcwh/2016-11/01/content_2000384.htm
