Keywords: trade marks, China, copyright amendment bill, Hong Kong, Pharmacy and Poisons Ordinance, URS System, Chinese Postal Bureau, Personal Data Protection Rules
In March 2014, the Chinese State Postal Bureau (SPB) issued three sets of provisions (the "Three Provisions") which now constitute a regulatory framework for data privacy in relation to postal and express delivery (PED) services in China. The new legislation represents the most recent addition to China's growing collection of sector-specific statute on the treatment of personal data.
The Three Provisions are:
1. Provisions on the Management of the Security of Personal Data of Postal and Delivery Service Users (the "Security Provisions");
2. Provisions on the Management of Undeliverable and Unreturnable Express Items (the "Undeliverable Items Provisions"); and
3. Provisions on the Reporting and Handling of Security-related Operational Information in the Postal Industry (the "Reporting Provisions").
1. The Security Provisions
The Security Provisions were enacted on 26 March 2014. Their aim is to prevent the leakage and loss of personal data. Personal data is defined to include any of the names, addresses, ID numbers, telephone numbers and company names of the sender and recipient, as well as the order number, delivery time and details of the posted item. The Security Provisions apply to all PED service activities that involve personal data safety, and the supervision and management of these activities.
Under the Security Provisions, PED enterprises are required to enter into written confidentiality agreements with their employees. They are also expected to train and educate their staff on their ethical responsibilities. Without clear legal authorisation or written agreement, PED enterprises may not disclose any personal data to anyone, with the exception of the police and national security bureaus who are conducting investigations in accordance with the law. The Security Provisions contain chapters on the safe management of (i) physical delivery records and (ii) electronic delivery records. PED enterprises are required to maintain a physical set of traceable records in a centralised, secure area. They are encouraged to increase the use of technology in order to reduce the likelihood of data leakage, and to reduce the number of staff involved in the handling process.
PED enterprises are also required to increase the security of their electronic record storage by using data encryption methods and ensuring the safe use and protection of devices on which personal data is stored. Any copying, destruction or large-scale extraction of personal data should be reviewed and examined. PED enterprises are required to appoint a network manager to protect and improve the operation of their data systems, database and network. PEDs are also required to conduct regular internal audits and risk assessments.
The SPB has power to investigate any contravention of the Security Provisions by PED enterprises that may impair personal data security; PED enterprises who refuse to comply with the Security Regulations are liable to having their express delivery business permits revoked. Any unauthorised provision of personal data that constitutes an offence will be directed to legal authorities which may pursue a criminal investigation. PED enterprises are also liable to compensate any loss suffered as a result of leakage of personal data.
2. The Undeliverable Items Provisions
The Undeliverable Items Provisions came into effect on 10 March 2014. They set out the steps that express delivery enterprises should take in relation to items that cannot be delivered or returned to the sender ("UUIs"). Under the Undeliverable Items Provisions, express delivery enterprises are required to establish a management procedure for UUIs. They should maintain a special UUI storage area, in which UUIs will be preserved for a minimum of one year from registration.
Where UUIs are not claimed by the end of the preservation period, express delivery enterprises may open the packages and take photographs and notes of their contents. Express delivery enterprises are required to set up a claim platform on which details of these opened packages will be publicly advertised for a period of at least 30 days.
During the preservation and handling period, express delivery enterprises must not unlawfully disclose the data of the service users.
3. The Reporting Provisions
The Reporting Provisions, enacted on 26 March 2014, create a framework for the efficient and comprehensive reporting of operational information that may have an impact on security. Operational information that may have an impact on security is categorised either as (i) information on unexpected situations; or (ii) information on day-to-day operations.
Information on unexpected situations includes information on natural disasters, chemical leakage, epidemics and terrorist attacks that have led to staff deaths, staff injury or the largescale destruction, loss or backlog of postal items. Information on day-to-day operations includes the discovery of illegal substances such as explosives and drugs, theft of postal items, change of staff and the hijacking of delivery vehicles.
The Reporting Provisions identify the authorities to which PEDs should report different types of information, and set out the appropriate responses. For example, when notified of certain information on unexpected situations, PEDs should implement a 24-hour duty system to receive, verify and track information on the situation.
At half-yearly intervals, PEDs are required to submit a report to the authority below the Provincial Postal Bureau in the form provided, containing information such as number of staff deaths, number of lost postal items, and number of cases of data leakage. The authorities below the Provincial Postal Bureau must collate the figures and report to the Provincial Postal Bureau, which must in turn report to the SPB.
Originally published June 2014
Visit us at www.mayerbrownjsm.com
Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2014. The Mayer Brown Practices. All rights reserved.
This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.