China: Recent Data Protection Developments In The People´s Republic Of China

Last Updated: 11 March 2009
Article by Gordon Milner and Paul D. McKenzie

The People's Republic of China ("PRC") still lacks a comprehensive legal framework to regulate the use and disclosure of personal data. Whilst the introduction of a national, generally applicable data privacy law remains elusive, recent months have seen a resurgent, if piecemeal, legislative interest in the topic at both national and local levels.

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.

In this update we outline the substance and current status of each of these developments and consider their potential implications for businesses operating in China.

A. Legislative Activity at the National Level

Seventh Amendment to the Criminal Law

On February 28 the Standing Committee of the National People's Congress ("NPC") promulgated the Seventh Amendment to the Criminal Law of the PRC. The Amendment, which also updates the Criminal Law in a variety of areas such as tax evasion and insider trading, makes 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.

If the violation is "severe," to individuals found guilty of either offense 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."

Major national-level PRC laws are often broadly drafted, and subsequent implementing regulations or interpretations of the Supreme People's Court may provide guidance on these questions in due course.

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.

Draft Tort Liability Law

A draft Tort Liability Law has been in the legislative process for some time. Sensitivities surrounding the law have delayed its progress since the first draft was initially submitted for review by the Standing Committee of the NPC in 2002. However, the process appears to have picked up momentum and the draft law was submitted for a second round of review and comments at the end of 2008. It is possible that the Tort Liability Law may be promulgated in the coming year, though no timetable has currently been set and given the slow legislative progress to date, further delays should not be ruled out.

The draft Tort Liability Law contemplates a wide-ranging reform and modernization of PRC tort law. In addition to extensive provisions governing areas such as product liability and environmental pollution that are unrelated to data privacy, the draft law contains several novel provisions with potentially far-reaching data privacy implications.

There is no generalized right to prevent disclosure of personal data under existing PRC tort. Any such right arises only within the context of a defamation action - specifically a claim of infringement of an individual's 'reputational right' under the 1986 General Principles of the Civil Law of the PRC (as further clarified in a 1993 interpretation by the Supreme People's Court). Whilst recent decisions suggest an increasing willingness on the part of the PRC courts to give prominence to the protection of privacy (see section C below), such protection remains essentially limited by the need to establish reputational infringement.

In contrast, the draft Tort Liability Law appears to recognize an independent right of privacy. Unfortunately little further detail is provided in the draft law, and, if the law is passed in the present form, it will be necessary to wait for the Supreme People's Court to add flesh to these bare bones.

In addition to this potential elevation of the right of privacy, the draft Tort Liability Law provides that:

  • a party whose right to privacy is infringed is entitled to claim from the tortfeasor the profits arising from the breach. In addition to the right to claim damages for "emotional harm" and actual loss that arises under the existing General Principles;
  • a website operator who either acknowledges that a party's privacy or other rights are being infringed through content posted on its website, or who is warned of such infringement by an affected party and fails to remove the content or adopt other corrective measures, is jointly and severally liable with the party having posted the content; and
  • if an affected party requests registered information about the party that had posted infringing content and the website operator refuses to divulge such information, the website operator itself becomes liable for the infringement.

Draft Personal Information Protection Measures
Following an initial study carried out in 2003, the PRC State Council commissioned a group of PRC legal scholars to prepare a draft national law that would focus exclusively upon the regulation of data privacy. The draft Personal Information Protection Measures ("Protection Measures") were published in 2005 and provided as follows:

  • entities undertaking the commercial processing of personal data would require a permit from a new "personal data administrative authority" prior to collection of personal data;
  • collection of personal data by non-government entities would generally require prior consent from the data subject; and
  • the administrative authority would have the power to restrict the cross-border transmission of personal data to any jurisdiction that did not provide sufficient protection to such data.

The draft Protection Measures were merely a consultative document and have not been formally adopted by any part of the PRC government. Indeed, since the publication of the draft measures, attempts to introduce a national privacy law appear to have remained in limbo. Proposals for such a law have been submitted to the NPC several times since 2005. However, none of these proposals have yet come to fruition and it seems likely that the introduction of any such national privacy law remains some way off.

B. Legislative Activity at the Local Level

Recent months have also seen moves to legislate on matters of personal privacy at a local level. Several provinces and cities (including Guangdong Province, Shanxi Province, and Xuzhou city) have introduced laws to regulate the online disclosure of personal information.

By definition local legislation is limited in territorial scope and it is therefore difficult to see how it might be sensibly applied to the Internet. Moreover, there is a risk that overeager local legislative activity may result in an inconsistent patchwork of laws across the country – though such a possibility might spur the central government to accelerate progress towards the adoption of a unified national law.

The legislation passed by the city of Xuzhou in Jiangsu province on December 12, 2008 is fairly typical of local Internet privacy statutes. The Municipal Provisions for Protection of Computer Information System Security (the "Xuzhou Provisions") are expected to come into force on June 1, 2009 and expressly prohibit any person from using any computer information system to:

  • provide or publicize another person's private information without consent;
  • steal account numbers, codes, or other information;
  • intercept, alter, or delete others' email or other data; or
  • publicize or send information by false impersonation.

As with the national laws previously discussed, the Xuzhou Provisions are drafted at a very high level and no guidance is given as to the meaning of key concepts such as "private information." The Xuzhou Provisions also:

  • place several obligations upon website operators including to designate personnel to be responsible for verifying and reviewing information posted online; to restrict the dissemination of group messages and anonymous information; to delete links to unlawful information; and to maintain records for the purpose of collecting evidence; and
  • provide for administrative sanctions against employees in certain government departments who release private information, materials or data relating to computer system operators or users.

In addition to issuing warnings and imposing monetary fines, in severe cases the local Public Security Bureau is also given the power to shut down a breaching party's Internet connection for six months and to recommend that the relevant government authority revoke any relevant operating license held by that party in connection with its Internet business.

C. Recent Litigation

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.

The court identified five specific factors that it considered important in the determination of whether an infringement of the right to privacy has occurred: (i) the manner by which the private information is acquired, (ii) the manner by which the private information is disclosed, (iii) the scope of disclosure of the private information, (iv) the purpose of disclosure, and (v) the consequences of disclosure.

In addition to the exposition of the "right to privacy," the court also held that the website operating companies:

  • were required to demonstrate best efforts in the prevention of the disclosure of personal information over the Internet, such as implementing privacy policies and website policies to regulate the activities of users, and implementing a monitoring system; and
  • assumed tortious liability for information posted and circulated on their websites where the information was not timely removed once it became known or acknowledged to be illegal or to infringe individuals' legal rights.

Notwithstanding the focus of the judgment on the right to privacy, it may be somewhat premature to assume (as some observers have suggested) that the right to privacy now exists independent of the right to reputation under the General Principles. It is important to recognize that the infringement of the right to privacy claim was brought in conjunction with a successful infringement of reputation claim and that ultimately the reputational rights sections in the General Principles were still cited in the judgment as the statutory basis for the decision. Moreover, in any event, it is important to note that under the PRC's civil law system, the judgment does not have any formal binding precedential effect.

Reproduced with permission from the Privacy Law Watch, 41 PRA-BUL, 3/5/2009,

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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.

Gordon Milner
Paul D. McKenzie
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
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