30 六月 2020 Civil Code Series I: Protection on Personal Information and Privacy
On May 28. 2020, China’s first civil code (“Civil Code”) was passed at the third session of the 13th National People’s Congress (NPC) and the third session of the 13th National Committee of the Chinese People’s Political Consultative Conference (CPPCC) (collectively referred as “Two Sessions”) which were held in Beijing. The PRC Civil Code consists of 1260 articles in seven chapters which include: 1) General Provisions, 2) Property Rights, 3) Contracts, 4) Personality Rights, 5) Marriage and Family, 6) Inheritance, 7) Torts, as well as the Supplementary Provisions. The Civil Code will take effect officially on January 1, 2021.1
In the Chapter 4 Personality Rights, Civil Code provides the protection on personal information and privacy. This legislation is to meet the urgent needs of protection on personal privacy in the era of internet and information digitization.
The old legal framework spread out in various laws and rules with different definitions and scopes of protection of personal information, for example, the General Rules of the Civil Law, the Cybersecurity Law, the Provisions on Protection of Personal Information of Telecommunication and Internet Users, and the Consumer Rights and Interests Protection Law.
The Civil Code reorganizes the scattered legal protection of personal information and improves the whole framework by unifying the regime and adding new provisions. For example,
1. The Civil Code extends the scope of personal information under Cybersecurity Law by covering “email, health information, whereabouts information.”
2. The Civil Code broadens the coverage of personal information process under Cybersecurity Law by lining up whole process—collection, storage, use, processing, transmission, provision and disclosure.
We highlight the main content about the protection on personal information and privacy for your reference:
I. Protection on Personal Information Under the Civil Code
Definition of Personal Information2
The Civil Code clearly states the scope of Personal Information by combining definition with enumerations.
• Definition: any kind of information recorded electronically or otherwise that can identify a particular natural person, either alone or in combination with other information,
• Enumerations: the natural person’s name, date of birth, identity document number, biometric information, address, telephone number, e-mail, health information, whereabouts information, etc.
Definition of Personal Information Process3
The Civil Code embraces the following concepts into the range of “process”: collection, storage, use, processing, transmission, provision and disclosure of personal information.
Protection Framework on Personal Information Process
Responsibilities on Personal Information Protection
II. Protection on Privacy Under the Civil Code
Definition of Privacy 15
Privacy is a kind of private space, activity and information that the natural person is not willing to let others know.16
Prohibited Infringements on Privacy17
No organization or individual may commit any of the following acts, unless otherwise provided by law or with the express consent of the obligee:
1. Harass others’ private life by means of telephone, SMS, instant messaging tools, e-mail, flyers, etc;
2. Enter, photograph and peep into other people’s houses, hotel rooms and other private spaces;
3. Photograph, peep, eavesdrop and publicize other people’s private activities;
4. Photograph and peep at the private parts of others’ bodies;
5. Handle others’ private information;
6. Violate the privacy of others in other ways.
Chinese legislature has lined up the formulation of the Personal Information Protection Law in the next major work plan. Asiallians will keep a close eye on how personal information protection and privacy protection legislation provide individual claims and remedies18 in the judicial practice, and we also will follow up on implementing legislation promulgated in the future.
(2) Article 1034 of Civil Code
(3) Article 1035 of Civil Code
(4) Article 1035 of Civil Code
(5) Article 1035 of Civil Code
(6) Under PRC laws, people under age 18 is minor. Civil Code provides that process personal information of minors shall obtain the consent of their guardians.
(7) For example, During the Novel Coronavirus Pneumonia (“NCP”) period, certain governmental agency collected personal information for precautionary research. In some cases, it is hard to obtain the consent required. In this unusual circumstance, certain laws and administrative regulations are applicable to provide authorization.
(8) Article 1226 of Civil Code
(9) Article 1030 of Civil Code
(10) Article 1037 of Civil Code
(11) Article 1038 of Civil Code
(12) Article 1036 of Civil Code
(13) Article 999 of Civil Code
(14) Article 1039 of Civil Code
(15) Article 1032 of Civil Code
(16) Article 1034 of Civil Code provides that, when there is an overlap between personal information and privacy, the provision on privacy shall regulate the overlap.
(17) Article 1033 of Civil Code
(18) For example, a person may claim to stop infringement, remove obstruction, eliminate danger, eliminate influence, restore reputation and claim for apology. See Article 995 of Civil Code.
Should you need more details, please contact us at firstname.lastname@example.org. As always, Asiallians remains at your service and our teams are currently mobilized in all our offices in China, Hong Kong and Taipei.