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//Picking up where he left off, CGCS visiting Scholar Jinghong Xu continues his look at the History of Internet Privacy in China through a legislative lens. Sparked by the recent 12-article Decision on Strengthening Online Information Protection adopted by Chinese lawmakers, Xu examines preceding Chinese legislation and charts the evolution of the word “privacy” from imperial double standard to modern day information security.
In ancient China, the respect and protection of the elements making up the right to privacy were present, but mostly when concerned with the ruling class. Privacy laws and regulations were put in place to punish the invasive, not to protect the people at large.
The first feudal legal code, the Book of Law, stipulates that those caught peering into the imperial palace “should be punished by cutting their kneecaps” while those caught talking about royal affairs “may be sentenced to death.” These rules operated with the understanding that the emperor could arbitrarily invade others’ private affairs (Xianming Xu, 1998).
Until very recently, the right to privacy saw little progressive adaptation. Both the Civil Law Draft of Qing Dynasty (completed in 1911) and the Civil Law Draft of the Republic of China (completed in 1925) contained general protection for the right to individual personality, but without any specific regulations about the right to individual privacy. Due to political complications, neither draft were put into practice.
The Civil Law Code of the Republic of China, however¸ was enacted between 1929 and 1932, serving as the first civil code in Chinese history. Article 195 of the document provides that:
…compensation for non-property damages because of infringing body, health, reputation or freedom, while illegally infringed his or her right to body, right to health, right to reputation, right to freedom, right to credit, right to privacy, right to chastity or any other legal interests and rights of personality with serious consequences, the victim shall have the right to demand certain amount of money as compensation even if he or she hasn’t suffered property loss. When his or her reputation is infringed upon, the victim shall have the right to demand that his reputation be rehabilitated with certain appropriate punishments.
The Civil Law Code can be regarded as a landmark in the fight for privacy – it is the very first time that the words “right to privacy” appeared in national law. Privacy was mentioned simply, not singled out or highlighted, but instead listed alongside various other rights. (Jinghong Xu, 2010.)
Hanhua Zhou & Miaohan Su (2009) concluded that after the foundation of the People’s Republic of China, the legislative history of the “right to privacy” can approximately be divided into three periods.
The first period was roughly from 1949 to 1981 when neither privacy (yǐn sī) nor personal information appeared first in the legislation. The Chinese word for shameful or embarrassing private affairs (yīn sī), however, does make an appearance, as it was already a part of the culture of the time.
The first law installed alluding to privacy was the Decision of the Standing Committee of the National People’s Congress on Cases not to be Heard in Public (issued in 1956 and in effect until 1987). This legislation handles identifying which kinds of cases should be heard not in public. Note the use of the word for ‘shameful or embarrassing private affairs (“yīn sī”).
The entire decision reads as follows:
Cases involving state secrets, individual’s shameful or embarrassing private affairs and crimes committed by minors younger than eighteen years may not be heard in public by People’s courts.
Article 119 of the Criminal Procedure Law of the People’s Republic of China (issued in 1979) has almost the same content of the decision above:
Cases of first instance in a People’s court shall be heard in public. However, cases involving state secrets or individual’s shameful or embarrassing private affairs shall not be heard in public. No cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public. Generally, cases involving crimes committed by minors who have reached the age of 16 but not the age of 18 shall also not be heard in public. The reason for not hearing a case in public shall be announced in court.
Article 7 of the Law of the People’s Republic of China on the Organization of the People’s Courts (issued in 1979) provides that:
All cases in the People’s courts shall be heard in public, except for those involving state secrets, individual’s shameful or embarrassing private affairs and the crimes committed by minors.
It should be mentioned that when the Law of the People’s Republic of China on the Organization of the People’s Courts was revised in 1983, Article 7 remains the same and kept the word “yīn sī” (shameful or embarrassing private affairs). Until its next revision in 1986 which incorporated privacy for the first time (yǐn sī), the law remained static. Note the similarity between the Chinese words for private affairs (yīn sī) and privacy (yǐn sī).
The Preliminary Opinions of the Supreme People’s Court on Judicial Openness according to Law in the People’s Courts (issued in 1981) provides that “generally speaking, cases involving individual’s shameful or embarrassing private affairs refer to those involving [sexual] behavior and [actions] humiliating women.” Thus solidified, was the meaning of “yīn sī” (shameful or embarrassing private affairs).
We may say that the laws and regulations concerning the right to privacy of this period is strictly limited to the aspect of shameful or embarrassing private affairs, which can be found strong historical and cultural traditions and influences.
The second period was roughly from 1982 to 2002 during which ‘privacy’ began to appear and to gradually substitute for ‘shameful or embarrassing private affairs’ in all laws and regulations. Civil Procedure Law of the People’s Republic of China (For Trial Implementation), was issued in 1982, and was the first law to actively use ‘privacy’.
Article 45 provides:
…With the permission of the People’s court, the parties may consult the materials relating to the court proceedings of the case and may request that copies of the materials and other legal documents be made at their own expense. However, materials involving state secrets and the private affairs of individuals shall be exceptions…
During the first years of this period, the traditional words for ‘shameful or embarrassing private affairs’ and ‘privacy’ were used at the same time when issuing new laws or amending old laws. The above-mentioned Law of the People’s Republic of China on the Organization of the People’s Courts continued to use the traditional words for ‘shameful or embarrassing private affairs’ when it was revised in 1983.
The third period spans from roughly 2003 until current day. What separates this period from the preceding two, is the appearance of the word for ‘personal information’ in laws and regulations.
The Law of the People’s Republic of China on the Identity Card of Residents (issued in 2003) was the first law to use the word personal information.
Article 6 provides:
…The personal information of the citizens learnt of by the public security organs and the people’s policemen in the course of making, issuing, checking and detaining of the identity cards shall be kept confidential.
Article 19 provides:
…a policeman who infringes upon the legal rights and interests of the citizens to disclose the personal information of the citizens learnt of in the course of the making, issuing, checking, and detaining of the identity cards, shall be given an administrative sanction in accordance with the law according to the circumstances; if a crime is constituted, he shall be prosecuted for criminal responsibilities.
2006’s Passport Law of the People’s Republic of China provides for the following:
…The passport issuance departments and their functionaries shall keep confidential the citizens’ personal information they know have access to due to making or issuing passports. (Article 12)
…Any functionary of a passport issuance department impairing the legitimate rights and interests of any citizen due to divulging of personal information of the citizen which he knows has access to in the course of making or issuing a passport during the process of handling the affairs relating to passports-related matter, he shall be given an administrative sanction. If any crime is constituted, he shall be subject to criminal liabilities. (Article 20)
Hanhua Zhou (2010) pointed out that there had been 22 laws, 15 administrative regulations, hundreds of departmental rules and other normative documents of law using the word ‘privacy’ by 2010.
Recently, a 12-article Decision on Strengthening Online Information Protection, which has the same legal effect as law, was adopted by Chinese lawmakers during a session of the Standing Committee of the National People’s Congress. China’s top legislature aimed to enhance the protection of personal information online and safeguard public interests. The Decision can be regarded as an important milestone in Chinese laws and regulations concerning the protection of privacy online.
In a modernization of traditional understanding, the advent of the Internet saw Chinese legislators begin to use the word for “personal information” more frequently.
During this modern period of Chinese privacy, the word “yīn sī” (shameful or embarrassing private affairs) has been completely substituted by “yǐn sī”(privacy) when concerning personal information in laws and regulations. Most of the time, “yǐn sī”(privacy) and personal information are regarded as the same and are used interchangeably.
Hanhua Zhou, 2010. Analysing the related legal problems of 360 privay-protector and QQ bodyguard. [Online]. http://www.iolaw.org.cn/showArticle.asp?id=2766. (In Chinese.)
Hanhua Zhou & Miaohan Su. 2009. Sixty years of constructing Chinese informationization laws and regulations. E-Government. 10, pp. 53-54. (In Chinese.)
Jinghong Xu. 2010. The right to privacy and its protection during the course of Internet communication. (p. 58). Beijing: Beijing Yanshan Press. (In Chinese.)
Xianming Xu. 1998. Personal and personality right. In Buyun Li (Eds.), Comparative study of constitution. (p. 486). Beijing: 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.