China: Personal Information Protection Will Be Comprehensively Strengthened By Four Chinese Legislations

In recent years, along with continuous vigorous development of the internet, positive impacts produced therefrom have gradually penetrated into various sectors of society and every walk of life. However, problems of hacker attack, data leakage, and cyber fraud in regard to personal information of citizens are highlighted at the same time, which have been criticized much by the public. Currently, internet-related legislation, represented by the promulgation of the Cyber Security Law as well as the drafting of the General Rules on the Civil Law, is exactly a positive response by the legislators to such problems, which has shown the determination of China to further strengthen the comprehensive protection of personal information.

I. The Cyber Security Law Promulgated Formally with A Highlight of Emphasis on Personal Information Protection

On November 7, 2016, adopted by vote at the 24thSession of the Standing Committee of the Twelfth National People's Congress ("NPC"), the Cyber Security Law of the People's Republic of China ("Cyber Security Law") was promulgated formally in China. The Cyber Security Law, which contains seven chapters and 79 articles, shall come into force on June 1, 2017.

Pursuant to Article 76(5) of the Cyber Security Law, "personal information shall refer to various types of information recorded electronically or by other means that can be used separately or in combination with other information to identify the person, which includes without limitation the name, date of birth, identity card number, personal biological identification information, address, telephone numbers, etc. of the person". Therefore, a significant feature of personal information is that it can be used to "identify the person". Though, there are provisions in regard to the protection of personal information in some laws and regulations (for example, the Criminal Law), the Cyber Security Law explicitly elaborates the important concept of "personal information" for the first time at the level of law.

The Cyber Security Law is the first basic law for the field of cyber security in China, of which the relatively comprehensive provision on personal information protection is a major highlight, and especially in Chapter 4, several articles are adopted to stipulate the protection of personal information. For example, Article 41(1) provides that, "when collecting or using personal information, internet operators shall comply with the principles of legality, justification and necessity, make public the rules for the collection and use, clearly indicate the purposes, methods and scope of the information collection and use, and obtain the consent of those whose information is collected."Article 44 provides that, "no individuals or organizations may steal or otherwise illegally obtain personal information, or illegally sell or provide personal information to others."It is noteworthy for enterprises operating in China that, such provisions put forward higher requirements for compliance to relevant enterprises, when focus on strengthening the protection of personal information.

Besides, the Cyber Security Law stipulates the cross-border transfer of data for the first time at the level of law, which may present a great challenge for the compliance of multinational enterprises operating in China. However, there is limitation for the restriction on cross-border transfer of data as well, which is specifically provided in Article 37 of the Cyber Security Law, "operators of key information infrastructures shall store within the People's Republic of China the personal information and other important data collected and generated in operation in China; if it is truly necessary for business to provide overseas, security assessment shall be conducted in accordance with the measures formulated by the Cyberspace Administration of China ("CAC") in conjunction with relevant departments of the State Council. Where there are special provisions under laws and administrative regulations, such provisions shall prevail."Such provision involves complicated issues with significant impacts, though there are not many words. For instance, the identification of the operators of key information infrastructures; the connotation and denotation of important data; the criteria for the determination on the business necessity to provide overseas; the security assessment on cross-border transfer; relevant procedures issues, etc. However, the resolution of above issues is subject to further elaboration by relevant legislation and observation of subsequent enforcement practice by competent authorities.

II. The General Rules on the Civil Law (Draft for the Second Review) Supplements Provisions of Personal Information Protection

The Civil Code, as the fundamental law in national civil area, is closely related to every citizen, while the draft and formulation of the General Rules on the Civil Law occupy a pivotal position in the compilation of the Civil Code. After the first deliberation on June 27, 2016, the General Rules on the Civil Law (Draft for the Second Review)("Draft for the Second Review") has been formulated based on the draft for the first review. So far, the Draft for the Second Review has been deliberated at the 24thSession of the Standing Committee of the Twelfth NPC.

Compared with the draft for the first review, the Draft for the Second Review has a major highlight, providing that "personal information of people shall be protected by law. No organizations or individuals may illegally collect, use, process or transfer personal information, or illegally provide, make public or sell personal information". Such provision proposes to adopt the protection of personal information as a civil right in basic civil law for the first time. Though, the provisions concerning the protection of personal information remain to be elaborated with potential further revision, the introduction of the personal information protection in the Draft for the Second Review shows the great importance attached by the legislators, as well as their positive interaction with the public concerns. Moreover, the basic spirit and legal value of the personal information protection are expected to be defined in the General Rules on the Civil Law promulgated in the future.

III. Draft of the Electronic Commerce Law Regulates the Collection and Use of Personal Information in E-commerce

China's e-commerce transactions are now enjoying a rapid growth, with an average growth rate of more than 35% in the past five years. While E-commerce has greatly promoted the economic development, problems including leakage of personal information, unfair competition, harm on rights and interests of consumers come out one after another in e-commerce activities, therefore leading to increasing appeals of special legislation in e-commerce. By 2013, the Electronic Commerce Law has been formally included in the legislation agenda of Financial and Economic Committee and Legislative Affairs Commission of NPC. It is one of the important tasks of e-commerce legislation to strengthen the security of personal information in the process of enactment process of the Electronic Commerce Law. In electronic transactions, the personal information of citizens, including the key information such as name, telephone number, home address, transaction/payment record and bank card information can be easily obtained. In reality, the abuse and illegal transaction of such information are more frequent. Thus, special protection on personal information in e-commerce activities has been extremely urgent.

By August 2016, the drafting work of the Electronic Commerce Law (Draft) has been completed and submitted to the NPC for deliberation. The fourth chapter on the e-commerce transaction protection devotes to the provisions on collection, processing, use, sharing, etc. of e-commerce data. The provisions of such chapter on personal privacy and data protection basically follow the internationally accepted principles of data protection. Article 45 introduces the concept of the "right of personal information in e-commerce" and defines that e-commerce users have the right to make decisions on their own personal information. Bank card information, transaction records, payment records, express and logistics records shall fall into the personal information in accordance with Electronic Commerce Law, given it is formally formulated.

It is noteworthy that the Electronic Commerce Law (Draft) provides, "E-commerce operators shall not force users to agree to their collection, processing, use of personal information by refusing to provide services to such users... ... E-commerce operators may not modify rules on the collection, processing and use of personal information without the consent of the users." At present, the policies on privacy protection or personal information protection of many e-commerce enterprises go against the Electronic Commerce Law (Draft). For example, according to the policy of some e-commerce platforms, the users shall no longer use their service if they refuse to accept any provision of the privacy policy. That is to say, e-commerce platforms force users to accept all provisions in its privacy policy, which in fact deprives the users' right to decide on one's own. There is no doubt that once the Electronic Commerce Law is formulated, it will be necessary for the e-commerce enterprises to develop or adjust the privacy policy in accordance with the Electronic Commerce Law, with particular attention on the compliance in this regard.

IV. Regulations of Internet Protection on Minors (Draft for Comments) Provides Special Rules on Information Collection and Use of Minors

On September 30, 2016, the State Internet Information Office issued the Regulations on Internet Protection on Minors (Draft for Comments) ("Draft for Comments") and solicit comments from the public from then to October 31, 2016. The Draft for Comments will be the first legal document to specially protect legitimate rights and interests of minors in cyber space. The Draft for Comments include the provision "protecting the online personal information of minors" into General Principles, showing the importance of such provision.

Pursuant to Article 16 of the Draft for Comments, "any collection or use of personal information of minors by internet shall be prominently marked with warning signs, indicating the source, content and use of information collected, with the permission of a minor or its guardian."In addition, according to relevant provisions of the Draft for Comments, internet information service providers should also develop a policy specifically for the protection on personal information of minors, which requires a higher standard of protection on personal information of minors collected and used through the internet. If the minors or their guardians request to delete and shield the personal information related to the minors in cyberspace, the internet information service provider shall delete and shield such information. However, the Draft for Comments has not defined whether such deletion and shield shall be irreversible and de-identified. Any collection and use of personal information of minors in violation of the Draft for Comments shall be punished by relevant departments, including the CAC and the Ministry of Industry and Information Technology, in accordance with law.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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 Mondaq.com.

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

Authors
Events from this Firm
6 Dec 2017, Webinar, New York, United States

Join Dentons for a complimentary webinar focused on the ongoing challenge of integrating new technologies into existing information governance policies and risk management frameworks.

7 Dec 2017, Seminar, Cape Town, South Africa

Dentons South Africa would be delighted if you could join us for our upcoming event.

8 Dec 2017, Seminar, Johannesburg, South Africa

Dentons South Africa would be delighted if you could join us for our upcoming event.

 
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”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.