China: Data Privacy In China: Civil And Criminal Law Developments

Legal assistant Fang Jingxiao in the firm's Beijing office provided valuable assistance on this article.

China, like many jurisdictions, has been grappling with the issue of how to protect personal information and data at a time when information tools are becoming increasingly pervasive and sophisticated. People's Republic of China ("PRC") law has not traditionally included robust rights of privacy that can be built upon to take account of modern information technology, although certain notions of an individual right to privacy can be derived from the PRC Constitution and other legislation.

China does not have comprehensive national law focusing exclusively upon the regulation of data privacy. In 2003, the Chinese government began considering the need for such legislation by commissioning a group of legal scholars to prepare what became in 2005 the draft Personal Information Protection Measures (the "Measures"). The Measures have not been adopted to date, and various local governments and courts have taken steps in the interim. Please refer to our earlier client alert for a more detailed discussion of the Measures as well as local regulations and judicial interpretations at:

Significant changes occurred in 2009 with the promulgation of amendments to the Criminal Law (the "Criminal Law Amendments"), which included sanctions for the unlawful disclosure or acquisition of certain kinds of personal data. Over the past seven years, China circulated multiple drafts of a new Tort Liability Law (the "Tort Law") with relatively far-reaching provisions governing data protection and privacy rights. The Criminal Law Amendments and the last draft of the Tort Law are also discussed in the client alert referred to above.

On December 26, 2009, the Standing Committee of the National People's Congress adopted the Tort Law, which will come into effect on July 1, 2010. On the criminal law front, prosecutors have already started to pursue prosecutions under the data privacy provisions of the Criminal Law Amendments, with one case in particular drawing media attention.

This client alert outlines the significance of promulgation of the Tort Law and discusses the import of the recent criminal case.

Tort Liability Law

The final Tort Law promulgated on December 26 confirms the material provisions cited in our previous client alert:

  • The right of privacy is a unique type of right separate from other civil rights and interests, although the definition of privacy and the scope of the right are not described in detail.
  • Infringement of the right of privacy can give rise to a private right of action for civil damages (i.e., a tort claim).
  • A party whose right to privacy is infringed is entitled to claim from the tortfeasor the profits arising from the breach as well as damages for emotional harm.
  • A website operator who either recognizes that a party's privacy or other rights are being infringed through content posted on the operator's 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.
  • If an affected party requests registered information about the party having posted infringing content and the website operator refuses to divulge such information, the website operator itself becomes liable for the infringement.

One additional subject matter related to privacy protection addressed in the final version of the Tort Law that was not included in the draft discussed in our prior alert concerns protection of the data privacy of medical patients. The Tort Law requires medical institutions to establish and keep various types of medical records and hold such records private and confidential. A patient has the right to bring a tort claim against a medical institution or its personnel for damages resulting from the unauthorized disclosure of the patient's medical records by the medical institution or such personnel.

On balance, the most significant development from the privacy provisions of the Tort Law is the creation of a new private right of action of an individual to claim damages for breach of his or her privacy right. Whereas past attempts to address misappropriation of personal data had to invoke attenuated references to the General Principles of the PRC Civil Law(the "General Principles"), these General Principles, along with the PRC Constitution and other PRC Civil Code measures, never recognized a private right of action for a breach of one's relatively amorphous "right of privacy."

We expect that future judicial and legislative interpretation of the Tort Law and new legislation will further clarify the nature of this private right of action, presumably in line with the General Principles which are applied to other private rights of action. In particular, we note that the Tort Law explicitly reaffirms one of the general precepts of Chinese law that an employer is responsible for the actions of its employees in the course of performing their work-related tasks, and thus if those actions result in the infringement of an individual's privacy right, the employer may be held liable.

Criminal Conviction in Southern China

On January 3, 2010, a court in the southern Chinese city of Zhuhai reportedly convicted a Chinese citizen of the illegal acquisition of someone else's personal information. The individual was sentenced to one and a half years in prison with a fine of 2,000 Renminbi. The case has been described as the first conviction in China under the Criminal Law Amendments.

The case involved a Chinese private citizen who purchased a detailed log of telephone calls made and received by high-ranking local government officials and sold the information to fraudsters who used it to impersonate the officials and convince their friends and relatives that they needed money due to emergency circumstances. Several individuals then transferred money to a bank account under the control of the fraudsters. The fraudsters were convicted of fraud and the individual who purchased and resold the telephone log to the fraudsters was convicted for the illegal acquisition of the personal information of those government officials.

The case is important for its interpretation of the term "severe circumstances" as used in the Criminal Law Amendments. Under Article 7 of the Criminal Law Amendments, a wrongdoer is to be convicted only when, among other things, the circumstances of the case are severe. The language leaves room for interpretation as to how the courts should consider the relevant circumstances to be severe, but presumably the factors could include both the manner in which the information is obtained and the harm which results from misuse of the information.

The case at hand demonstrates the court's belief that one possible set of severe circumstances could be when stolen personal information is later used to commit another crime. This interpretation may soon be reaffirmed in another case in the city of Hangzhou, where a person has been arrested (though not yet convicted) under the same provisions for the sale of personal information of automobile owners to a third party. Purportedly, the information was later used by the third party to engage in blackmail. Another factor which could have led the court in Zhuhai to consider the circumstances to be severe is the target of the stolen information, which were high-ranking local government officials. It will be interesting to see whether a court would consider a different set of facts to be severe, for example where the information was not used to commit a crime but an individual or company nevertheless suffered large monetary losses as a result.

Companies doing business in China should carefully evaluate their business strategies and internal control procedures in light of the potential risks presented by the data privacy provisions of the newly enacted Tort Law and recent judicial interpretations such as the case in Zhuhai. We will continue to monitor developments in this field and update our clients on what those developments could mean for operations in China.

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.

Paul D. McKenzie
Gordon Milner
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
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
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 you may opt out by clicking here

    Terms & Conditions and Privacy Statement (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

    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’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.


    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.


    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.

    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 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.


    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.


    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.


    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.


    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 .


    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

    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

    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

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

    By clicking Register you state you have read and agree to our Terms and Conditions