China’s Tort Liability Law (TLL) includes two articles protecting an individual’s right to privacy. Article 2 provides a civil right of action for violation of an individual’s “right to privacy” among other “civil rights and interests.” Article 36 specifically protects these civil rights and interests from online infringement. Yet there have been few reported cases to date, possibly because Chinese courts may not have understood how to apply Article 36 to privacy matters, and so may have been unwilling to accept such cases.
In a bid to clarify, China’s Supreme People’s Court (SPC) promulgated a Regulation which clarifies procedural questions relating to Article 36 while also taking the opportunity to add several new substantive provisions. This article analyses both the procedural and substantive aspects, and concludes that the SPC Regulation has the potential to place civil actions far more in the centre of the resolution of privacy disputes in China. It gives explicit guidance on many key points to all of China’s courts in how to deal with such cases, which will both encourage potential litigants and their lawyers to commence cases, and encourage the courts to deal with them. A specific reference to compensation up to US$80,000 may assist.The authors' preceding 'The Emergence of Tort Liability for Online Privacy Violations in China' in (2015) 135 Privacy Laws and Business International Report 22-24 comments
Between 2009 and 2014, China’s legislative organs promulgated a series of fundamental data privacy laws and regulations. Amongst these developments is an increased attention to providing individuals a civil recourse (or tort action) in instances where their personal privacy has been violated by online activities.
This first part of a two-part article focuses on such protections as existed via China’s 1986 General Principles of the Civil Law (GPCL), and there subsequent codification in the 2009 Tort Liability Law (TLL). However, these developments have not, in themselves, led to a significant level of litigation, possibly due to uncertainly over how the TLL would function in this area. However some cases under the GPCL, notably the Wang Fei case, may have a continuing significance for the meaning of privacy under Chinese law, and on the role of intermediaries (IISPs).
The second part of the article will focus on an attempt to clarify some of these uncertainties, China’s Supreme People’s Court passed a regulation in October 2014 entitled “The Supreme People’s Court Regulations Concerning Some Questions of Applicable Law in Handling Civil Dispute Cases Involving the Use of Information Networks to Harm Personal Rights and Interests.” (SPC Regulation).