Notable recent developments include:
The promulgation of an amendment to the national Criminal Law in February 2009 to criminalize the sale or other unlawful disclosure of personal data by government officials and employees in key industries;
The introduction by several provinces and cities across China during 2008 and 2009 of independent local legislative measures to address Internet privacy concerns;
Further legislative progress of the draft Torts Liability Law, a long-debated measure with potentially important privacy implications; and
Recent decisions of the PRC courts helping to clarify the circumstances in which civil liability may arise under existing defamation rules when personal data is disclosed without authorization.
Privacy Law Watch uses this update to outline the substance and current status of each of these developments and consider their potential implications The Seventh Amendment to the Criminal Lawmakes it a criminal offense:
(i) for employees of government institutions or private organizations in the financial, telecommunication, transportation, education, or medical sectors to sell or otherwise unlawfully provide to third parties the personal data of any citizen that has been obtained in the course of performing duties or services by their employers; or
(ii) for any person to obtain such information by means of theft or other unlawful means.
Mondaq reports that the rule seems top be if the violation is ‘severe,’ individuals found guilty will be subject to imprisonment of up to three years and/or a monetary fine. The Amendment also specifically provides that organizations (such as corporate entities) that commit either offense shall be liable for a monetary fine and the responsible officers may be personally liable for criminal charges.
The Amendment is vaguely drafted. It does not define personal data, leaves unclear what types of disclosure will constitute ‘unlawful provision,’ whether and to what extent any authorization by the employer and/or consent by the data subject are relevant and what factors will be relevant in determining whether a violation is ‘severe.’
In the meantime, companies operating in the PRC financial, telecommunications, transportation, education, or medical sectors would be well advised to review their internal systems for preventing unauthorized disclosure of customer data, and all companies looking to acquire customer databases in China should take care to conduct thorough due diligence about the sources of such information.
The PRC courts have recently demonstrated an increasing willingness to protect private information by broadly interpreting existing PRC law.
The leading case involved an action brought by a Chinese citizen against one individual and two local website operating companies under the General Principles of the Civil Law. The wife of the claimant had committed suicide after discovering that the claimant was involved in an extramarital affair. The individual defendant established a website on which he described the extramarital affair and its effect on the deceased. The website’s contents included the name, address, and employer of the claimant, personal pictures, and other private information related to the claimant and his family. Visitors to the website copied the material to other websites including those hosted by the two defendant companies. As a result of the publicity, the claimant and his family suffered harassment and his employment was terminated. The claimant claimed both an infringement of reputation due to inaccurate statements contained in the posted material and an infringement of the right to privacy as a result of the publication of private information.
The Beijing Chaoyang district court rendered judgment in favor of the claimant on December 18, 2008. The judgment is notable for its detailed analysis and exposition of a ‘right to privacy’ appears to that somewhat stretch the concepts contained in the General Principles of the Civil Law. The court took the view that a person’s ‘right to privacy’ could be infringed by disclosure or publication of private information that the person does not want to disclose to others, concerning aspects of his private life, private areas, or domestic tranquility and connected with his interests or his body.