China: China Issues Draft Guidelines On Online Privacy, Announces New Agency To Supervise The Internet

China on February 10, 2011 issued the draft Information Security Technology – Guidelines for Personal Information Protection (the "Guidelines," or the "Draft") for comment. The purpose of the Guidelines, according to the preamble, is to "guide and standardize information-processing activities using information systems" in light of the "increasing use of the Internet and increasingly central role of personal information in social and economic activities." This action indicates the central government's intent to step up its efforts to regulate online data transactions in response to the rapid growth of e-commerce and the slow progress of the long-awaited Personal Information Protection Law (the first draft of which was completed in 2005). In addition, establishment of the State Internet Information Office parallel to the State Council Information Office announced on May 4, 2011 signifies that there will be tighter control of the Internet generally.

Non-binding "Guiding Technical Document". The Draft takes the form of a standard rather than a regulation and as such was issued by the Administration of Quality Supervision, Inspection and Quarantine ("AQSIQ") and the Standardization Administration of China ("SAC"), the latter of which is responsible for the formulation of standards. In fact, the Draft was published on the website of the Ministry of Industry and Information Technology ("MIIT") which is responsible for industrial policy and information technology but is not known to have a strong concern regarding privacy protection.

The Guidelines were drafted by the China Software Testing Center ("CSTC," an administrative and research unit under MIIT) together with major technology industry associations and internet companies closely related to MIIT. The governing authority for the finalized guidelines will be the Technical Committee on the National Standardization of Information Security under SAC. The Draft also indicates that the Guidelines when finalized will be non-binding. Specifically, they will constitute a "Guiding Technical Document," one of three categories of documents issued by SAC. Of the other two categories, "Mandatory Standards" govern key industries affecting public health and safety as well as individual property rights and must be observed by all relevant parties; while "Recommended Standards" cover less critical areas and are made available for voluntary adoption by private parties in business transactions. The "Guiding Technical Documents" category includes guidelines for on-going efforts to standardize new and still-developing technologies for which formal standard-making is premature. Guiding Technical Documents are for voluntary reference and unenforceable against the targeted subjects. In practice, however, they may induce compliance by participants concerned about competition and reputation.

Not constituting legislation or regulations, the Draft does not address such issues as legal causes of action, administrative remedies, enforcement, or indeed if there will be an enforcement body. Nor does it shed any light on the question of whether the protection of online privacy would affect access by security authorities to personal data based on privacy concerns. Nevertheless, because the Draft reflects MIIT's current state of mind with respect to regulation of the collection, processing, transfer, maintenance, use, and deletion of personal information on the internet for privacy purposes, its issuance is significant for internet service providers ("ISPs"), internet content providers ("ICPs"), ad networks, market information collectors and processors, and other players in China's fast-growing internet economy. As the Draft prohibits the export of regulated data unless specifically allowed by law or regulation or as agreed by the industry regulator (MIIT), it could also affect multinationals' centralized HR management and even the processing of student information by foreign universities. Should a substantially unchanged final version be adopted, especially if it is reflected in legislation or regulations, it is likely to increase the cost of compliance and risk management.

Definition of "Personal Information". The Draft defines "Personal Information" as "any knowable information relating to a natural person that can be used, either alone or in combination with any other information, to specifically identify such natural person." Thus, despite its name, the underlying concept is more akin to the business-centered concept of PII (personally identifiable information) than the privacy-oriented PI (personal information). It would not cover any information used for profiling and targeting advertisements if such information is used to contact or locate individuals without uniquely identifying them. On the other hand, "alone or in combination" signifies a potentially very broad scope. Without "alone or in combination," the definition would exclude most behavioral attributes of an individual (i.e., online browsing history), although such behavioral attributes when combined with demographic (e.g., address, date of birth, and gender) or other behavioral information may be sufficient to identify an individual.

This definition appears to be responsive to the most common privacy concern in China today. Consumers complain that they start to receive marketing calls and/or text messages after they buy a house or a car, open a bank account or purchase insurance. A few recent criminal prosecutions for the illegal appropriation, sale, and provisions of citizen personal information under Art. 7 of the Criminal Law have traced such unsolicited advertisements to the unauthorized sale of electronic customer files by employees of entities that keep customer files on their computer networks. To date privacy complaints voiced by consumers in the media typically do not implicate the use of sophisticated behavioral tracking software or the act of pushing advertisements through to computers without uniquely identifying their users.

Definition of "Personal Information Administrator". The Draft defines "Personal Information Administrator" ("PIA") as "a natural or legal person who has actual power to administer personal information." The term "actual power" extends the reach of these Guidelines beyond ISPs or ICPs to include such third-party data collectors as ad networks and market research firms, even firms that install tracking software hidden in free software offered to websites.

Guidelines on handling personal data online. In essence the Guidelines would adopt the notice-based model and non-technological privacy protection methods commonly used in the past two decades of industry self-regulation in the West. The core principles and requirements in the Guidelines require that personal data may be collected only directly from the individuals indicated, with notice of the purpose and scope of the prospective use of such data, and require consumer consent with respect to the collection, use, and disclosure of their personal data. Other requirements include: consumers can request access to their personal data retained by a PIA by contacting its designated personnel; processing and use may not exceed the scope of stated purposes; consumers with a "proper reason" can request that a PIA delete their personal data; and retention of data is limited to fulfillment of the stated purpose.

Prohibition of transfer of personal data out of China. The Draft prohibits transfer of personal data out of China without the express consent of the "governing administrative authority." Its enforcement would mean that foreign data collectors and consumer intelligence providers must form a subsidiary in China for data processing and may not transfer collected data to processing centers outside China without the prerequisite consent. This would arguably constitute a trade restriction, but MIIT has a history of protectionism.

Although the context suggests that the targets of the Guidelines are Internet data collectors and processors, technically such a prohibition could become an obstacle to integrated HR management for multinationals with operations in China. For example, the enforcement authorities could prohibit multinationals from transferring employee data outside China. For multinationals that maintain centralized HR functions, this could mean that they must obtain consent from authorities before sending information on employees in China to central files. This will cause unnecessary cost and inconvenience to multinationals doing business in China. Even foreign universities could be entangled with respect to the administration of Chinese student and employee data and study-abroad programs. Such prohibition would also, and presumably unintentionally, reduce the international competitiveness of Chinese information service outsourcers if they are restricted in their ability to transfer data outside of China.


China as yet does not have a comprehensive law on Internet privacy. Although China in October, 2009 amended its Criminal Law to include crimes relating to the handling of personal data and introduced administrative measures on the handling of such sensitive information as personal financial and health information, it has generally been cautious in its approach to comprehensive regulation of online privacy. Contrary to widespread anticipation, the 2009 Tort Law does not address privacy protection, and the pending amendment to the Consumers Rights Protection Law proposes to protect only the most basic demographic attributes plus financial and health information. This, together with the non-binding status of the Guidelines indicates that the central authorities are undecided about the balance between protecting privacy online and ensuring that the Internet remains a platform for economic growth, but the decision to establish a new State Council Office with supervisory responsibility over the Internet signifies an intent to increase regulatory scrutiny and capability. Maintaining access to personal information for national security reasons may also be a factor. It remains to be seen which of the Guidelines will be transformed into regulations, or whether the central authorities will let the Guidelines serve as a benchmark for self-regulation of the online-ad industry as technology continues to develop.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
DLA Piper Australia
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
DLA Piper Australia
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions