China: Online Whistleblowing And Privacy Protection In China

Last Updated: 13 December 2018
Article by Jia Hui
Most Read Contributor in China, April 2019

 As of the effectiveness date (June 1st,2017) of the Cybersecurity Law of PRC.,China has promulgated many new regulations and rules on personal data protection. On May 1st, 2018, the national standard of the "Information security technology—Personal information security specification" (the "Standard") has also become effective. The Regulations for the Security Protection of Critical Information Infrastructure ("Regulation") is currently in the process of legislation and will be promulgated soon. We recently advised several international institutions on their online whistleblowing and personal information protection relatedissues and below are some main points which are worth to be noted and discussed.

1. Online Whistleblowing system and Personal Information Protection

The online whistleblowing system enables the employees in private enterprises, government agencies or other institutions to disclose to the public or the competent authority or person of mismanagement, corruption, illegality, or some other wrongdoing by online platform or other online system. Below are two whistleblowing routes involved:

Under Whistleblowing Route I, the employees in China will disclose information directly to certain person or authority in the international institute directly. Under Whistleblowing Route II, the international institute will enter into an agreement with the third party online platform, who will provide whistleblowing related services. In order to comply with Chinese laws, certain issues should be considered such as critical information infrastructure, personal information and cross-boarder transfer of personal data.

2. Whether the international institute and third party online platformare deemed as an operator of critical information infrastructure

Underthe Cybersecurity Law, online operators are categorized into two types: critical information infrastructure ("CII") operator and non-CII operators. CII operators will have higher level responsibilities on personal information protection. For instance, the CII operator will store within China any personal information and important data collected and generated during its operation within China. Where such information and data have to be provided abroad for business purpose, security assessment shall be conducted pursuant to the laws.

The Cybersecurity Law defines CII operating in important industries and sectors such as public communications, information service, energy, transport, waterconservancy, finance, public service and e-government, and other critical information infrastructure that, once damaged, disabled ordata disclosed, may severely threaten the national security, national economy, people's livelihood and public interests. Pursuant to the Regulation, the network facilities and information systems operated and administered by the following entities shall be included in the scope of critical information infrastructure as their damage,dysfunction or data leakage may severely jeopardize national security, people's livelihood and public interest: 

(1) government agencies and entities in the energy, finance, transportation, water conservation, health care, education, social insurance, environmental protection and public utilities sector; 

(2) information networks,such as telecommunication networks, broadcast television networks and the internet, and entities providing cloud computing, big data and other large-scale public information network services; 

(3) research and manufacturing entities in sectors such as science and technology for national defense, large equipment manufacturing, chemical industry and food and drug sectors; 

(4) press units such asbroadcasting stations, television stations and news agencies; 

(5) other key entities.

Thus, it will be important to analyze whether the international institute and third party online platform are deemed as an operator of critical information infrastructure herein. TheCybersecurity Law does not limit the operator of CII to be a Chinese entity although theCybersecurity Law is applicable to the construction, operation, maintenance, and use of networks, as well as to cybersecurity supervision and management within the mainland territory of China. If the international institute and third party online platform constitute operators of CII, they will be subject to higher degree of responsibilities on cybersecurity and personal information protection.

3. Personal Information Protection and Cross-border Transfer of Personal Data

The "Measures for the Security Assessment of Personal Information and Important Data to be Transmitted Abroad ( Exposure Draft ) " ( the "Measures" ) defines personal information to be all kinds of information recordedby electronic or other means that can be used to independently identify or be combined with other information to identify natural persons' personal information including but not limited to: natural persons' names, dates of birth, ID numbers, biologically identified personal information, addresses and telephone numbers, etc.

The Standard defines the following personal information as personal sensitive information, including ID number, personal biological identification information, bank account, telecommunication recordsand contents, asset information, credit information, tractinformation, accommodation information, health and physiology information, transaction information, personal information of children under 14 years old, etc. The storage and transmission of personal sensitive information will be required to take security measures such as encryption.

In respect of the transmission of personal information abroad, the network operator (whether CII operator or not) shall provide an explanation on the purpose, scope, content and receiver of the data to be transmitted abroad, and the country or region where the receiver is located to the owner of the personal information, and the transmission shall be consented by such owners. Outbound transmission of personal information of a minor shall be agreed by the guardian thereof.

The transmission abroad of both personal information and important data[1] generated or collected by a network operator during its operation within the territory of China will be subject to security assessment under the Measures. Under the following circumstances, a network operator shall apply to its industrial authority or regulator to organize security assessment: 

(1) The data to be transmitted abroad contains or contains in aggregate the personal information of morethan 500,000 users; 

(2) The quantity of the data to be transmittedabroad is more than 1,000 gigabytes;

(3) The data to be transmitted abroad contains data in the areas of nuclear facilities, chemical biology, defense industry, population and health, as well as the dataof large-scale project activities, marine environment and sensitive geographic information;

(4) The data to be transmitted abroad contains system vulnerabilities, security protection and other network security information of critical information infrastructures;

(5) A critical information infrastructure operator provides personal information and important data abroad; 

(6) Other data which may affect national security, and social and public interests, and are necessary for assessment as determined by the industrial authority or regulator. Otherwise, the security assessment can be done by the entity on its own.

During the security assessment for the data to be transmitted abroad, the following aspects shall be highlighted: 

(1) necessity of transmittingthe data abroad; 

(2) personal information involved, including the quantity, scope, type and sensitivity of personal information, as well as whether the owner of personal information agrees to transmit his personal information abroad; 

(3) important data involved,including the quantity, scope, type and sensitivity of important data; 

(4) security protection measures, ability and proficiency ofthe data receiver, as well as the network security environment of thecountry or region where the date receiver is located; 

(5) risks of leakage, damage, alteration and abuse of data after being transmitted abroad and further transferred; 

(6) risks to national security,social and public interests, and personal legitimate interests arising from transmitting the data abroad and gathering the data to be transmitted abroad; 

(7) other important matters to be assessed.

However, any personal information or important data shall not be transmitted abroad in any of the following circumstances: 

(1) the outbound transmission fails to be approved by the owner of personal information, or may jeopardize personal interests; 

(2) the outbound transmission causes security risks to the nation's politics, economy, technology and defense, which may affect national security and jeopardize social and public interests; 

(3) other data which are forbidden to be transmitted abroad as determined by the state cyberspace administration , public security authority, security authority and other relevant authorities.

Under the whistleblowing scenario, when the employees make information disclosure in the anonymous or identified manner, personal information may be involved and proper personal information protection measures should be taken. In respect of personal sensitive information, security measures such as encryption should be taken inrespect of the storage and transmission. When it comes to cross-border transmission of personal information, security assessment should be conducted either by the network operator itself or by the competent authority. The time for storage of personal information should be minimized and any personal information should be de-identified immediately after the collection and be separately stored from other personal information which could be recovered for identification purpose. The network operators should, in light of its business development and network operation, conduct security assessment of the data to be transmitted abroad from time to time (at least once a year) and sufficient internal control policies and data export security assessment mechanisms should be established.  

Footnote

1 The Measures defines important data to be the data closely related to national security, economic development and public interests, and the relevant national standards and guidelines for identification of important data shall apply mutatis mutandis to the specific scope of important data.

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
Similar Articles
Relevancy Powered by MondaqAI
 
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
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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