No clear statutory right of privacy exists in China. Support for and protection of reputation and privacy rights can be found, however, in certain judicial decisions and regulatory interpretations. More development in the area is necessary, and the National People’s Congress is considering enactment of a Personal Information Protection Law. This article reviews the current state of privacy and reputation protection in China.
Although the definition of privacy right is not clearly defined in Chinese statutory, through interpretations of laws by competent authorities, it can be deemed as the right to: manage one’s personal information; enjoy a peaceful life; confidentiality of private affairs; and the right to utilize one’s privacy.
Although we can find a few provisions on privacy protection in a series of laws, such as Civil Laws and Criminal Laws, there is no specific law regulating privacy right in a systematical manner in China. In daily life, infringement on privacy right is increasing and becoming more frequent. Currently, the prominent problems of privacy protection in China are as follows:
1. The scope of privacy right is not expressly defined in any specific law and the protection mainly depends on self-discipline by various entities. Some laws and regulations are related but rather scattered.
2. While the definition of the law is not clearly given, privacy right is often over interpreted or under estimated leading to either abuse or lack of protection.
3. Currently, the privacy right is considered an "interest of privacy" and the protection is affiliated with the reputation right. The reputation right is not as effective during the judicial process. These two rights cover different scopes: (a) privacy is different from reputation in essence; (b) the infringement on privacy right refers to the disclosure of private information, while the infringement on reputation right is based on nonexistent facts or exaggerated facts; (c) privacy right is only enjoyed by a natural person while the reputation right can be enjoyed by a legal person or natural person.
In practice, we seek for privacy protection pursuant to Article 140 of Opinions of the Supreme People’s Court on Certain Issues Concerning the Implementation of the "General Principles of the Civil Law of the People’s Republic of China" and Article 7 of Answers of the Supreme People’s Court to Certain Questions of the Trial of Cases Concerning Reputation Right. As the articles stipulate, oral or written dissemination of the private information of another person shall be determined as an act of infringement on reputation right if such act has brought about certain influence. Thus, under such circumstances, people can claim damages for infringement on reputation rights in order to protect their privacy rights.
Affiliated with reputation right, the undertaking of the legal liability arising out the infringement upon privacy right includes: ceasing the infringing act; restituting the original status; rendering a formal apology; eliminating negative effect; and rehabilitating one’s reputation. If one’s privacy right is infringed upon then he/she may resort to the related laws and regulations. Specific remedy will be introduced according to the facts of the cases.
The privacy right is restricted when it contradicts public interest and the right to know. Public interest relates to the common interest affecting the majority of the society. Where there is contradiction, public interest will prevail. Doctors, journalists and photographers should have the personal information disclosed when the public interest of an individual is likely to be damaged.
To a degree the right to know is related to the public interest, meaning people have the right to know what they should know (i.e. political and economic policies of the state, conducts of government officials and private affairs of celebrities referring to the public interest).
Generally, the privacy protection in China is indirect and affiliated with the reputation right. We are looking forward to the new legislation of the "Personal Information Protection Law." It will be listed in the agenda of China’s National People’s Congress (NPC).