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Defamation, Privacy and Data Protection
Contributors: Dai Yue (Partner) and Li Tianren (Senior Associate), King & Wood Mallesons
In China, the PRC Civil Code is the key legislation in Civil laws on protection of reputation and privacy. The PRC Civil Code was effective as of 1 January 2021, incorporating the General Provisions of the Civil Law, the General Principles of Civil Law and the Tort Liability Law etc.
In the PRC Civil Code, Article 110 and Article 111 are general provisions on protection of reputation and privacy rights, while Book IV “Personality Rights” contains detailed regulations. For example, Article 1024 in Chapter 5 “Right of Reputation and Right of Honour” of Book IV provides that: [a] civil subject shall enjoy the right of reputation. No organization or individual may infringe upon the right of reputation of any other person by such means as insult or libel. Article 1032 in Chapter 6 “Right of Privacy and Protection of Personal Information” of Book IV provides that: [a] natural person shall enjoy the right of privacy. No organization or individual may infringe upon the right of privacy of any other person by spying, invading and harassing, disclosing or publishing the relevant information or by any other means.
Moreover, there is an overlap between personal information protection and privacy protection, as Article 1034 of the PRC Civil Code provides: [f]or the confidential information included in personal information, the relevant provisions on the right of privacy shall apply. The protection of personal information is mainly regulated in Chapter 6 “Right of Privacy and Protection of Personal Information” of Book IV. For example, Article 1038 provides that: [i]nformation processors shall not divulge or tamper with personal information collected or stored by them; without the consent of a natural person, information processors shall not illegally provide personal information of such person to others, except for information that has been processed so that specific persons cannot be identified and that cannot be restored. In addition, the PRC Personal Information Protection Law, which regulates collection, processing and storage of personal information, has also been enacted, as illustrated below.
These laws set up a legal framework governing issues such as the constitutive elements of the infringement, how to commence reputation and privacy right litigation and corresponding remedies to the victim. Additionally, the Supreme People’s Court has issued a series of judicial interpretations in relation to specific issues that have arisen in reputation and privacy right cases.
According to the PRC Criminal Law, reputation and privacy disputes may also give rise to criminal liabilities. Article 246 of the PRC Criminal Law regulates the criminal liability for serious defamation and Article 253 regulates the violation of personal information rights.
These provisions in the Criminal Law seek to safeguard and reinforce reputation and privacy protection in China.
According to Article 179 and Article 995 of the PRC Civil Code, the methods of assuming liabilities of reputation and privacy infringement include: (1) cessation of infringement; (2) removal of obstacles; (3) elimination of danger; (4) elimination of adverse effects; (5) compensation for losses; (6) apology; and (7) restoration of reputation. There is no maximum level of financial compensation. If the infringement gives rise to any loss to the property of the victim, the tortfeasor is liable for the loss sustained by the victim as the result of the infringement.
In addition, if the infringement inflicts a serious mental distress on the victim, the victim may also require compensation for the infliction of mental distress.
Article 188 of the PRC Civil Code provides that the limitation period for ordinary civil proceedings is three years, starting from the date when the victim knows or should have known of the infringement of rights and the tortfeasor, except as otherwise prescribed by any other law.
However, if the victim claims for cessation of infringement, removal of obstacles, elimination of danger, elimination of adverse effects, rehabilitation of reputation, or apology., then the victim is not subject to abovementioned or any other limitation periods.
Under PRC law, a person will be liable for infringement of the other party’s reputation rights if: (1) he/she committed an act of infringement, such as slander or libel of the other party’s reputation; (2) the other party has suffered damages from the infringement, such as a reduction in the social reputation; (3) there was a causal relationship between the infringement act and the damage; and (4) the person was subjectively at fault.
Similarly, a person will be liable for infringement of the other party’s privacy if abovementioned 4 elements are met.
In accordance with the Civil Procedure Law, as tort cases, claims regarding both reputation right and privacy right are under the jurisdiction of the court at the place where the infringement occurs or at the place of domicile of the defendant. The place where the infringement occurs includes the place where an infringement act is committed and the place where the consequence of an infringement act occurs.
In both reputation right and privacy right cases, the plaintiff has the burden of proving: (1) the infringement act committed by the defendant; (2) damage or loss owing to the infringement act; (3) a causal relationship between the infringement act and the damage suffered; and (4) the defendant was subjectively at fault. The defendant has the burden to prove any rebuttals he/she raises.
Under PRC law, the defences include procedural defences and substantive defences.
(a) Procedural defence
Alleging claims are time-barred is a procedural defence. As mentioned above, the current statute of limitations is three years. It supersedes the original two-year statute of limitations prescribed in the General Principles of Civil Law. The court will not make interpretations with respect to the issue of statute of limitations if no party of the hearing makes such a defence.
(b) Substantive defence
In most reputation right cases, the defendant usually brings the following four defences against the plaintiff. Firstly, whether the plaintiff/defendant is the proper entity to the disputed case. For example, if the plaintiff or the defendant used certain nicknames, stage name or special reference, then whether there is sufficient evidence proving the plaintiff has standing and the defendant is proper to the case will become essential. Secondly, whether the disputed content is true and conform to actual situation and therefore the defendant should not be liable for any reputation infringement. Thirdly, whether the plaintiff consented to the infringement. Fourthly, whether the damage was caused by the plaintiff or a third party. The defendant will bear the burden of proving his/her defences.
In privacy right cases, one of the most common defences that the defendant may raise is that the disputed information does not fall in the scope of private information. For example, if the disputed information is publicly available, then it is not considered as a private information. In addition, if the plaintiff is a public figure (i.e. celebrity, politician or public officials), the defendant may allege the plaintiff’s right to privacy cannot be protected to the same extent as ordinary people. Other than that, the defendant may also argue that the plaintiff consented to the infringement, or the damage was caused by the plaintiff or a third party. The defendant also bas the burden of proving his/her defences.
Contrary to the common law jurisdictions, there is no traditional jury system in Chinese civil litigation. Alternatively, according to the People’s Assessors Law, when hearing a first instance civil case that (1) involves the interests of a certain group or public interests, (2) attracts extensive attention of the public or otherwise has great social impact, or (3) has complicated case circumstances, the people’s court can form a collegial bench consisting of judges and people’s assessors.
The plaintiff or defendant to a civil case of first instance may also apply to the court for people’s assessors’ participation in the trial in the form of the collegial panel.
Those people’s assessors shall have equal rights and obligations as judges, and enjoy such rights as participating in trial activities, independently making comments, and obtaining support for the performance of functions.
Data protection provisions are covered in the abovementioned general laws. For example, in the PRC Civil Code, it provides that：[w]here any laws provide for the protection of data and network virtual property, such laws shall apply; in the PRC Criminal Law, it also imposes criminal liabilities on crimes in relation to digital data.
The contents of data protection are stipulated more specifically in the corresponding special laws. For example, Personal Information Protection Law (hereinafter “PIPL”), effective from 1 November 2021, established a significant regulatory system over personal information protection. In PIPL, it defines applicable scope, general principles for personal information processor; details rules for processing personal information and sensitive personal information by general processors and government authorities; provides cross-border transfer of personal information rules and the review mechanism; enumerates individuals’ rights in information processing activities; imposes obligations on processors and specifies the competent authorities for personal information protection. The PRC Cybersecurity Law regulates the activities of network operators and other personnel, the scope of duties of relevant government authorities, and the corresponding liabilities of violation of the law. The PRC Electronic Commerce Law stipulates the activities of the electronic commerce businesses, formation and performance of electronic commerce contracts and legal liabilities of violating the law. PRC Data Security Law, effective from September 1 2021, established a multi-level protection scheme for different categories of data to monitor the security risk. In addition, the lawmakers are preparing for other laws and regulations in the field of data protection and review mechanism.
Certain regulatory authorities in China that are responsible for the supervision and management of cybersecurity also issue relevant data protection regulations. For example, the Ministry of Industry and Information Technology issued the Provisions on Protecting the Personal Information of Telecommunications and Internet Users to regulate the collection and use of user’s personal information in the process of provision of telecommunications services and Internet information services, and to protect the legitimate rights and interests of telecommunications and Internet users. In addition, the Cyberspace Administration of China has drafted the Regulations on Network Data Security Management, which are open for public comments now. Industry-specific regulations are also promulgated in automobile, finance, and healthcare sectors. Those measures are applicable during collection, storage, transmission, processing and use of data within the territory of PRC.
In China, the Constitution provides that people are entitled to the protection of their reputation and privacy.
Specifically, Article 38 of the Constitution provides that: [t]he personal dignity of citizens of the People’s Republic of China is inviolable. Insult, libel, false accusation or false incrimination directed against citizens by any means is prohibited. Article 40 provides that: [f]reedom and privacy of correspondence of citizens of the People’s Republic of China are protected by law. No organization or individual may, on any ground, infringe upon citizens freedom and privacy of correspondence, except in cases where, to meet the needs of state security or of criminal investigation, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law.
Contributors: Yue Dai (Partner) and Li Tianren (Senior Associate)
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The material in this Guide is for general information only and does not constitute legal advice.
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