Privacy in China: overview

A Q&A guide to privacy in China.

The Q&A guide gives a high-level overview of privacy rules and principles, including what national laws regulate the right to respect for private and family life and freedom of expression; to whom the rules apply and what privacy rights are granted and imposed. It also covers the jurisdictional scope of the privacy law rules and the remedies available to redress infringement.

To compare answers across multiple jurisdictions, visit the Privacy Country Q&A tool.

This article is part of the global guide to data protection. For a full list of contents, please visit www.practicallaw.com/dataprotection-guide.

Contents

Legislation

1. What national laws (if any) regulate the right to respect for private and family life and freedom of expression?

The Constitution of the People's Republic of China (PRC) (last revised on 14 March 2004) provides basic rights and freedoms of individuals, including freedom of person, the right of reputation, and the freedom of privacy of correspondence.

The General Principles of Civil Law of the PRC, effective as of 1 January 1987, offer the legal basis against defamation. The right of privacy is considered as a type of reputational right based on the opinion of the Supreme People's Court.

The Tort Liability Law, effective as of 1 July 2010, clearly sets out the right of privacy as a type of civil right and interest. This is the first time under PRC law that the right of privacy is treated as an independent type of civil right, and no longer attached to the right of reputation. Under the Tort Liability Law, the injured party is entitled to bring claims against the offending party.

 
2. To whom do the privacy law rules apply?

An individual whose right of privacy is infringed can bring claims against the injuring party and commence proceedings to protect privacy.

 
3. What privacy rights are granted and imposed?

Under the Constitution of the PRC, the following rights are protected:

  • Freedom of person. The freedom of the person of citizens of the PRC cannot be violated (Article 37, PRC).

  • Right of reputation. The personal dignity of citizens of the PRC cannot be violated (Article 38, PRC).

  • Respect for home. The place of residence of citizens of the PRC cannot be violated. Unlawful searches or intrusion of the place of residence is also prohibited (Article 39, PRC).

  • Freedom of privacy of correspondence. The freedom and privacy of correspondence of citizens of the PRC is protected by law. No organisation or individual may, on any ground, infringe upon citizen's freedom and privacy of correspondence. This is with the exception of cases where to satisfy the needs of state security or criminal investigation, public security or procurational authorities are permitted to censor correspondence in accordance with the procedures prescribed by law (Article 40, PRC).

The General Principles of Civil Law of the PRC and the Tort Liability Law of the PRC do not include a specific definition of the right of privacy, which is subject to the interpretation of the courts.

 
4. What is the jurisdictional scope of the privacy law rules?

The General Principles of Civil Law and the Tort Liability Law apply to the PRC (and for these purposes does not include Hong Kong, Macau and Taiwan).

 
5. What remedies are available to redress the infringement of those privacy rights?

The Tort Liability Law of the PRC provides eight major remedial methods for torts in general. In relation to the infringement of privacy rights, the injured individual is entitled to request that:

  • The infringement stops.

  • The reputation is restored.

  • The effects of the infringement are eliminated.

  • An apology is made.

  • Compensation is awarded for losses suffered.

 
6. Are there any other ways in which privacy rights can be enforced?

Sector-specific regulations contain provisions protecting the personal information of individuals. A breach of these regulations can result in administrative penalties and the injured individual can also bring civil actions against the injuring party.

 

Contributor profiles

Marissa Xiao Dong, Partner

Jun He Law Offices

T + 8610 8519 1233
F + 8610 8519 1350
E dongx@junhe.com
W www.junhe.com

Professional qualifications. Qualified in PRC

Areas of practice. Corporate and M&A; Information Law.

Recent transactions

Marissa Dong has advised many private and public transactions for multinational companies, private equity firms and Chinese state-owned and private companies and across the wide spectrum of industrial sectors, particularly internet and telecommunication, education and manufacturing business. In addition to her corporation and M&A practice, as an Information Law expert, Marissa Dong has advised many multinationals (including both Chinese and foreign nationals) on data privacy, information security and related regulatory matters in China.

Languages. Mandarin, English

Publications.

  • China contributor to Global Security and Privacy Law.

  • Recent articles in Bloomberg BNA: Agency Issues Draft Regulation on Administration of Personal Health Information (January 2014), New Online Transaction Rules Enhance Protection of Consumer (March 2014).]


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