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中国从古代开始，就逐渐形成了严格受“三纲五常”（ 三纲五常： “三纲”即“君为臣纲”、“父为子纲”、“夫为妻纲”；“五常”
//In the first in a series of posts on Internet Privacy in China, CGCS visiting scholar Jinghong Xu examines a recent 12-article Decision on Strengthening Online Information Protection adopted by Chinese lawmakers. Having the same legal weight as law, the Standing Committee of the National People’s Congress approved the Decision December 28th 2012. Regarded as an important milestone in Chinese media law and the regulation of Internet privacy, the main purpose of the Decision was to enhance the protection of personal information online and safeguard public interests.
It is generally acknowledged that there is an absence of what the West would describe as the “right to privacy” in traditional Chinese society and culture. This does not mean, however, that the Chinese have no concept of a right to privacy at all. If we trace Chinese history in detail, we actually find that to some extent, the Chinese people do care about the right to privacy, but operate with a different understanding and definition than that of “Western” privacy.
From ancient times, the personal lifestyle of the Chinese people has formed gradually under the restrictions of “the Three Cardinal Guides and the Five Constant Virtues” as specified in the feudal ethical code. The ‘Three Cardinal Guides’ refers a scenario in which a ruler guides their subject, father guides his son and husband guides his wife. Conversely, the Five Constant Virtues refer to benevolence, righteousness, propriety, knowledge and sincerity. Thus, the Chinese people functioned in a society with a very strict social hierarchy which accounted little for individual autonomy and privacy.
Zhiping Liang (1997) once said, “In ancient Chinese society, we could not find a similar distinction between the public law and private law as in ancient Rome, but could only find the Single Standard “Li”, which governed almost everything and linked the family and the country.” Li’s key component is a combination of the above mentioned “Three Cardinal Guides and the Five Constant Virtues”.
Kuo-Shu Yang (1995) pointed out, “Chinese familism constitutes the core of familistic orientation. In Chinese society, it is the family, rather than the individual, that is the basic structural and functional unit”. The Chinese concept of “public” and “private” is more about the relationship between the “public” and the “family”, and not so much between “public” and the “individual”. Thus, as far as traditional Chinese understanding goes, the privacy of an individual is inferior to the privacy of the whole family, the latter being a special kind of “group privacy or collective privacy” for the family unit as a whole.
Daokuan He (1996) further expanded on the concept of “family privacy” by advocating that the concept of such a “collective family privacy” is the key to understanding traditional Chinese culture. Paying more attention to “group privacy” than “individual privacy” is the main characteristic of the Chinese concept of privacy.
Historically, the Chinese have regarded privacy as something “shameful” or “embarrassing”, which may have involved safeguarding secrets around actions and information considered indecent (such as rape, molestation, and so on). Thus we may say that there was a lack of positive connotation for privacy in traditional Chinese society at all, even long after the founding of the current People’s Republic of China in 1949.
Under a Planned Economy System after the founding of the PRC, the Chines government arranged an individual citizen’s “private” life comprehensively and in great detail; from finding a job to getting married or getting divorced, etc., which seemingly diminished the need for privacy among the people. According to Xinbao Zhang (2004), there were no academic or research articles on privacy in mainland China before 1987 and the provisions of law never addressed the concept of privacy before 1988.
It is necessary, however dangerous, to make this kind of conclusion for we can hardly consult all the related documents. For instance, upon utilizing the China National Knowledge Infrastructure, two relevant papers surfaced – Hancheng He’s work on privacy as well as Jianhua Li’s– both of which were published in 1981.
There occurred, of course, repeated infringement upon the right to privacy leading up until 1987, but we may say that the Chinese people did not turn to legal weapon to protect the right to privacy before that year. In March of 1987, the first case concerning the right to privacy was brought to court.
The dispute happened in Shanghai between two shop employees, one of which publicly accused the other of leading life full of problems, laden with sexual liaisons and ethical misconducts (Yunxiang, 1995).
We may say that the Chinese people hadn’t realized they have something concerning the right to privacy which should be protected by law until then. In the next installment of this series, we explore this groundbreaking case and examine the legislative history of the right to privacy in China.
Daokuan He. 1996. On the Chinese Concept of Privacy. Journal of Shenzhen University (Humanities & Social Sciences). 13(4), p. 83. (In Chinese.)
Hancheng He. 1981. Case of marriage does not equal to case involving individual’s shameful or embarrassing private affairs. People’s Judicature. 5. p. 18. (In Chinese.)
Jianhua Li. 1981. What kinds of cases are cases of privacy?. Modern Law Science. 4. p. 61. (In Chinese.)
Kuo-Shu Yang. 1995. Chinese social orientation: An integrative analysis. In Tsung-Yi Lin, Wen-Shing Tseng, Eng-Kung Yeh (Eds.), Chinese societies and mental health. (p. 22). Hong Kong: Oxford University Press.
Xinbao Zhang. 2004. Legal protection of the right to privacy. (second edition). (p. 2). Beijing: The Masses Press. (In Chinese.)
Yunxiang. 1995. “Vail” should not be lifted: Reports on the right to privacy of the Chinese people. Qiqihaer Social Sciences. 2, p. 22. (In Chinese.)
Zhiping Liang. 1997. Seeking the harmony of natural order: Chinese traditional legal culture study. (p. 19). Beijing: China University of Political Science and Law Press. (In Chinese.)
//Jinghong Xu is an Associate Professor of Communication at the School of Digital Media and Design Arts, Beijing University of Beijing University of Posts and Telecommunications (BUPT). He is a Fulbright Visiting Scholar at the Center for Global Communications Studies of Annenberg School for Communication, at the University of Pennsylvania for the 2012-2013 academic year. Xu also serves as the vice-director of the interdisciplinary Center of Social Network Information Management and Service, BUPT and a post-doctoral candidate at the Institute of Law, at the Chinese Academy of Social Sciences.
He is a member of International Communication Association (ICA), the World Association for Public Opinion Research (WAPOR) and a Reviewer of the Chinese Social Sciences Citation Index (CSSCI) journal Library and Information Service. His research focuses on new media communication, media ethics, media policy and law, cyber culture, information law and Internet law, especially Internet Governance, online privacy, online public opinion and digital copyright, etc.
He holds a BA of English and as well as a MA of Journalism and Ph.D. of Communication. He has been involved in many funded projects in varying capacities as principal investigator, co-investigator and collaborator and has published a book and more then 50 articles. He can be reached via email.