Personal Information Protection Under Chinese Civil Code: A Newly Established Private Right In The Digital Era

• Author: Raymond Yang Gao
• Pages: 166-185

166 TSINGHUA CHINA LAW REVIEW [Vol. 13:165

PERSONAL INFORMATION PROTECTION UNDER CHINESE

CIVIL CODE:

A NEWLY ESTABLISHED PRIVATE RIGHT IN THE DIGITAL

ERA

I. INTRODUCTION

As the digitalization of our everyday life unfolds, people’s daily activities

having an interface with the Internet and the Internet of Things have been

generating a myriad of personal data in a fast, hidden, and even undetectable

manner. Data has increasingly become omnipresent. In such a context, the

economic and strategic value of personal data has been widely recognized in

the modern society. Safeguarding our personal data has become increasingly

important for each and every person, with the contestations concerned over the

proper standards of protection stirring growing heat among policymakers,

business actors, interest groups, and various stakeholders alike.

For the first time, the newly enacted Civil Code of the People’s Republic of

China (the “Civil Code”) has established a legal basis for personal information

protection as a matter of private law. By this virtue, China has set forth a private

law framework governing the protection of personal information. Focused on

the notion of personal information protection under the Civil Code,1 this

contribution proceeds in the following parts.

Part II identifies three prominent characteristics of Chinese legislations

regulating personal information protection prior to the Civil Code, suggesting

the limitations of this sectoral approach. Notably, the Civil Code has

substantially changed this status quo ante through establishing the individual

right to personal information protection on a standalone basis. Part III reviews

the normative content of personal information protection under the Civil Code.

First, under the Civil Code, personal information protection is not a legitimate

interest protected by the law, but rather an independent, specific personality

right. This means that the legal protection for an individual’s personal

information is more robust and comprehensive than otherwise. Second, the

Civil Code draws a distinction between the right to privacy and personal

information protection, albeit recognizing the possible overlap between them

with respect to “private information”. Part IV discusses the significance and

limitations of this newly established private right under the Civil Code. Part V

draws concluding remarks.

1 Yang Lixin (杨立新), Geren Xinxi: Fayi Yihuo Minshi Quanli — Dui “Minfa Zongze” Di 111 Tiao

Guiding de “Geren Xinxi” zhi Jiedu (个人信息：法益抑或民事权利——对《民法总则》第111条规定

的”个人信息”之解读) [Personal Information: Legal Interest or Civil Rights? — An Interpretation of

“Personal Information” in Article 111 of the General Provisions of Civil Law], 1 FAXUE LUNTAN (法学论

坛) [LEGAL F.] 34, 35 (2018).For the purpose of this article, I did not distinguish ‘data’ from ‘information’ but

used them interchangeably.

2020] CHINA LAW UPDATE 167

II. THREE NOTABLE FEATURES OF LEGISLATIONS REGULATING

PERSONAL INFORMATION PROTECTION PRIOR TO THE CIVIL CODE

Whilst legislative initiatives concerning personal information and privacy

protection drove the enactment of corresponding legislations in major

industrialized countries from the 1970s onward, personal information

protection has long remained a legislative void in China’s legal framework.2

With the rise of the Internet industry in China at the end of the 1990s, laws and

regulations dealing with personal information protection started to emerge

shortly thereafter. Yet, it is noteworthy that China used to adopt a sectoral

approach that heavily relied on a public law framework to regulate this subject

matter, with the distinction between personal information protection and the

right to privacy being obscured. Here, I identify three notable features of

legislations regulating personal information protection prior to the Civil Code,

which are important to understand this legislative approach at this earlier stage.

A. A Sectoral Approach Consisting Primarily of Public Law Sources

To begin with, at this stage, the provisions on personal information

protection were scattered in sectoral laws and regulations, concentrating

primarily in public law areas (most notably, criminal law and administrative

law).

One of the earliest legal provisions on the personal information protection

is the Decision of the Standing Committee of the National People’s Congress

on Preserving Computer Network Security promulgated on December 28,

2000.3 Treating information security as an important part of Internet security,

this instrument stipulates that unlawful interception of, tampering with, or

deletion of other persons’ emails or other data may constitute a crime, thereby

incurring the criminal liability of the infringers.4

In 2005, the Fifth Amendments of the Criminal Law criminalizes the steal,

sale, or unlawful provision of other persons’ credit card information.5 In 2009,

2 Yang Lixin (杨立新), Geren Xinxi: Fayi Yihuo Minshi Quanli — Dui “Minfa Zongze” Di 111 Tiao

Guiding de “Geren Xinxi” zhi Jiedu (个人信息：法益抑或民事权利——对《民法总则》第111条规定

的”个人信息”之解读) [Personal Information: Legal Interest or Civil Rights? — An Interpretation of

“Personal Information” in Article 111 of the General Provisions of Civil Law], 1 FAXUE LUNTAN (法学论

坛) [LEGAL F.] 34, 35 (2018).

3 Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Weihu Hulianwang Anquan de

Jueding (全国人民 代表大 会常务委员会关于维护互联网安全的决定) [Decision of the Standing

Committee of the National People’s Congress on Preserving Computer Network Security] (promulgated by

the Standing Comm. Nat’l People’s Cong., Dec. 28, 2000, effective Dec. 28, 2000) para. 4(2) (Chinalawinfo)

(“[…] anyone who commits any of the following acts, which constitutes a crime, shall be investigated for

criminal responsibility in accordance with the relevant provisions in the Criminal Law: […] (2) in violation of

the law, intercepting, tampering with or deleting other persons’ emails or other data, thus infringing on citizens’

freedom and privacy of correspondence.”)

4 Id.

5 Xingfa Xiuzheng’an Wu ( 刑 法修正案(五)) [The Fifth Amendments of the Criminal Law]

(promulgated by the Standing Comm. Nat’l People’s Cong., Feb. 28, 2005, effective Feb. 28, 2005), para. 1(4)

(Chinalawinfo).