Saturday, December 9, 2017

Yun Zhao on Online Privacy and Personal Data Protection in China (new book chapter)

"Online Privacy Protection: A Legal Regime for Personal Data Protection in China"
Yun Zhao
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 156 - 178
Introduction: Privacy is an important right in modern society, but we lack a clear and universal definition of the concept of 'privacy'.  Generally speaking, privacy belongs to the set of human rights that protects individuals' private information from unlawful interference, use and disclosure.  Private information can include personal life, personal information and private communication.  The Electronic Privacy Information Center (EPIC) and Privacy International (PI) divide privacy into four categories: information privacy, bodily privacy, privacy of communications and territorial privacy.
     The cyberspace created by the Internet has brought the world closer than ever before; geographical boundaries are no longer important, as information can transcend national borders easily. Technological developments have rendered the easy collection, storage, analysis, instantaneous disclosure and wide dissemination of private information possible at low cost.  Such tools as cookies and web bugs are widely used for online information collection, which is often carried out without users' knowledge.  The online sharing culture and active netizen participation pose serious challenges to privacy protection online.  First, the scope of online privacy and information is expanding rapidly.  In addition to such traditional data as land line and mobile telephone numbers, the privacy of such online personal data as email addresses, user names and instant messaging information (e.g. QQ numbers) is receiving increasing attention from the public.  Second, online data are increasingly important to merchants.  Hence, online privacy and information should be understood in both personal and economic terms.  For example, personal data have become a valuable asset in transactions carried out online.  Information collected by online merchants is used to create personal profiles indicating consumer preferences, which subsequently helps merchants to devise tailored marketing strategies.  Privacy protection online is thus receiving unprecedented attention.  As far as the Internet is concerned, of the four categories identified by EPIC and PI, information privacy is the primary concern.  Discussions in this arena concern how best to ensure the legal and reasonable use of online information.  Accordingly, this chapter examines the protection of online information, or personal data protection, rather than other aspects of privacy in the context of China.
     China does not have a strong tradition of privacy protection.  As one scholar has correctly observed, the general population of China does not know what the concept of privacy is.  Chinese history presents a picture of non-respect for privacy protection, particularly during the country's successive dynasties and, more recently, the Cultural Revolution period.  The online censorship created by the Great Firewall of China is another example of the downplaying of privacy protection in China.  However, the situation is changing.  The Chinese government has realized the importance of online privacy protection and taken initiatives to improve the legal regime governing it.  Chinese citizens' awareness of the need for privacy is also rising along with serious threats to personal data.   Furthermore, an increasingly globalized marketplace requires the existence of a data protection regime on par with the standards of other jurisdictions for the promotion of economic activities.  
     This chapter starts the discussion against this backdrop.  Section 2 briefly examines the current situation of privacy protection at the international level, followed by a closer examination of the current legal regime for privacy protection in China in Section 3.  The discussion of the relevant laws and regulations in China is by no means exhaustive.  In recent years, the Chinese government has taken a number of important steps to protect personal data.  Section 4 discusses these new initiatives and confirms that we would be optimistic about future developments in the field in China.  Section 5 continues with analysis of the problems with the current legal regime in China and shows the possible ways ahead for personal data protection in the country in future.  The chapter concludes in the final section that China is moving steadily, though slowly, towards the construction of a fair legal regime for personal data protection.

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