China: China's Draft Civil Code To Extend Privacy Protection

Last Updated: 11 September 2019
Article by Lester Ross and Tingting Liu

The Standing Committee of the National People's Congress published the Personal Rights of the Civil Code (draft for third reading) on August 27 for public comment.  Chapter Six (Articles 811-817) is dedicated to Privacy Rights and Personal Information (PI) Protection.  The new chapter, if enacted in its current form, would extend the scope of personal protection to both privacy rights and PI. 

Privacy is defined statutorily for the first time in the draft Civil Code as private space, private activities and private information which a natural person is unwilling to be made known to other persons, and that no organization or individual may infringe the privacy rights of other persons through spying, intrusion, leakage or public disclosure (Article 811).  "Not willing to be made known to other persons" is a highlight of the new third draft and was not reflected in earlier drafts.  The draft Civil Code provides that, except as stipulated by law or with the consent of the right holder, no one may search, enter, peer into or invade privacy space, or harass the peaceful lives of other persons through text messages, telephone calls, instant messages, emails, flyers or other means (Article 812).  

Parallel to privacy rights, the draft Civil Code also protects individuals' PI.  Article 813 expands the scope of PI to include "email address" and "whereabouts" along with the natural person's name, date of birth, personal ID number, biometric information, address and phone number.  PI handling would include the use, processing, transmission, provision and making public of PI.  When collecting and processing PI, the following precautions must be observed: (i) obtaining consent of the natural person or his/her guardian; (ii) making public the rules for information collection and processing; (iii) making clear the purpose, means and scope of information for collection/processing; and (iv) no violation to law or administrative regulations or mutual agreements (Article 814).  

The following acts in collecting/processing PI would not incur civil liability: (i) acts committed within the scope of agreement with the natural person/guardian; (ii) processing of self-disclosed PI or information having been legally available to the public, provided that the natural person expressly denies that the processing or possession of such information would infringe his/her major interests; and (iii) other acts reasonably committed in order to safeguard the public interest or the natural person's lawful interests (Article 815).

The draft Civil Code marks another enhancement of protection of PI since China's Cybersecurity Law took effect on June 1, 2017, when for the first time a comprehensive set of data protection provisions were included in national legislation.  China has since then been working on several regulations and national standards concerning PI and data protection including:

  • Information Security Technology – Personal Information Security Specification (PI Specification) issued by the National Information Security Standardization Technical Committee (TC260), effective on May 1, 2018, draft amendment released on June 25, 2019 for comment
  • Draft Data Security Administrative Measures released by the Cybersecurity Administration of China (CAC) on May 28, 2019 for comment 
  • Draft Measures on Security Assessment of Personal Information Cross-Border Transfers released by CAC on June 13, 2019 for comment 
  • Draft Information Security Technology – Basic Specification for Collecting Personal Information in Mobile Internet Applications released by TC260 on August 8, 2019 for comment 
  • Provisions on Protection of Children's Personal Information in Networks issued by CAC on August 23, 2019
  • Information Security Technology – Guidance on De-identification of Personal Information issued by TC260 on August 30, 2019

That being said, China still lacks an omnibus privacy or PI protection law, although a comprehensive privacy protection law is expected to be drafted within the next five years.  This creates several loopholes.  For instance, the current draft Civil Code has not listed information such as individual's accounts and passwords, medical history, financial data, communications records, marital status, religion and juveniles' personal data, and has not made a distinction between general PI and sensitive PI.  Such illustrations and distinctions, as well as detailed protection of PI, can be found in such documents as the PI Specification.  The PI Specification is a voluntary and recommended national standard, and businesses are expected to comply with it to demonstrate compliance with PI protection requirements under the Cybersecurity Law.  However, the PI Specification is not itself a mandatory document and enjoys no statutory status as would the Civil Code with respect to the imposition of sanctions for violations.

We also note that Article 817 of the draft Civil Code specifically prohibits state organs and their staff from leaking PI obtained in the performance of their duties.  However, Article 816(iii) exempts "acts reasonably committed in order to safeguard the public interest" from civil liability, which essentially provides leeway for government organs to collect and process PI in ways in which private information collectors and controllers are restricted, such as by forcing private entities or individuals to disclose to the government the PI under their control, intruding upon private communications and mass surveillance without consent, all in the name of the public interest.  The draft Civil Code is largely directed to civilian rather than government infringement.  Thus, government intrusions into personal privacy may continue to be extraordinary in depth and extent.

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
 
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
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