Do We Need Legislation to
Protect Personal Information ?

Your cellphone signals you have a text message but chances are it’s from a stranger. These days many people in China are bombarded with messages advertising a promotion, special deal or some so-called once in a lifetime opportunity. But how did they get your number in the first place? Remember divulging your personal information like cellphone numbers and addresses when you bought your house, applied for a job or a bank card, or bought your first car? Well it seems other people have access to your details too, a situation that has fueled a public outcry about lack of legal protection of personal information.

In China, legislation related to personal information can only be found in Article 101 of the General Principles of Civil Law, which stipulates that citizens and legal persons shall enjoy the right of reputation and privacy, and these rights shall be protected by law. That is to say, protection of reputation includes protection of privacy. According to law, violators of reputation rights only assume civil responsibility and this usually only happens after they are sued in court.

The draft of the Law for Personal Information Protection of the People’s Republic of China, completed in January 2005, after two years’ deliberation, has been submitted to the Information Office of the State Council for processing. With a definition of personal information that is broader than just including privacy, the drafted law places a wide range of

information under protection, including cellphone numbers, family addresses, medical records and occupation. Once the law is proclaimed, violators of personal information will be charged with administrative, civil and even criminal responsibility.

That may be great news for Chinese citizens, but many people question the enactment of such a law. There is suspicion that it will be used as an umbrella by corrupt government officials, who might refuse to publicize information that the public need to know, using protection of personal information as an excuse. The question is also now being asked, should private information of officials be defined as public information?

A Harmonious Society

Shen Hongqi (Economic Daily): The Law for Personal Information Protection of the People’s Republic of China has drawn wide attention from all walks of life. Promulgation of such a law will play an important and irreplaceable role in building a harmonious society.

Now it is common in China that personal information is leaked and then improperly used, constituting “harassment based on personal information leakage.” A recent fraud case involving misuse of personal information was tried by Luwan District Court of Shanghai in January. The group of criminals involved had collected personal information by setting up a bogus employment agency and then applied for credit cards with other people’s identity details. Within only nine months they had defrauded an amount of 470,000 yuan ($56,800).

In the current information age, collection, storage and transmission of a phenomenal amount of personal information could never be easier. In the meanwhile, illegal and malicious use of other’s personal information has become a chronic social problem. The release of the Law for Personal Information Protection will hopefully put an end to this malady. Previously, protection of one’s privacy could only be achieved through obtaining compensation via successful lawsuits. With such a law in place, personal information will be protected before and after being violated.

Installation of a personal information system is a necessary and basic project for building a harmonious and faithful society. Only with such a system in place could people safely and readily enjoy results of a modern information society. Take online banking for an example, its biggest advantages, convenience and speed are based on safety. If online banking would incur leakage and potential misuse of customers’ important personal information, which could put customers’ property safety in great danger, then online banking would not be accepted by many people.

Protection of personal information is vitally important and requires related legislation and strict legal implementation. The responsibility of some deeds that are deemed morally wrong but have no legal citation will be stipulated in law. For example, the act of selling other people’s e-mail addresses must be punished. Currently, over 100 items of personal information might be collected in the course of issuance of different social security cards and e-cards. Although this does not directly leak information, it poses great risk for further abuse of personal information and must also be forbidden by law.

Enforcement of the Law for Personal Information Protection is not only the concern of the enforcement authorities. One reason for the rampant infringement of personal information is the ignorance of personal rights in our tradition. Once we have the legal grounds for dealing with information criminals, people will take it upon themselves to respect personal information while protecting their own personal information. Rule of law will be realized.

Setting up a personal information protection system serves as the basis for construction of more information projects and marks the threshold of an efficient, orderly and harmonious information society.

Qiao Xinsheng (professor of Zhongnan University of Economics and Law): In an information society, information is money and can generate wealth. Thus many people are reaping a profit by collecting, storing and selling personal addresses and telephone numbers. If organizations and some individuals continue their unchecked collection and sales of personal information, the whole of society will be stuck into a state of information chaos. Lawsuits caused by selling and misuse of personal information by some organizations have already popped up. Some hospitals sell personal information of pregnant women, including family addresses and telephone numbers, to manufacturers of nutrition supplements for new mothers and babies, causing the new mothers to be plagued with telephone calls from sales promoters.

A country ruled by law must protect its citizens’ personal information through legislation. If a society is completely transparent and everyone is under surveillance, this society is anything but a humane or healthy one. As the whole society opens up, to legislate for protection of personal information is to protect citizens’ human rights, privacy rights, commercial secrets and basic living space. Laws and regulations on personal information protection are well established in many advanced market economies.

Protection of personal information, on the one hand, is different from protection of state information in its extensiveness, co-dependence and changeability. On the other hand, it differs from commercial information in that it is more closely related to a person’s daily life and profession. China’s existing laws protect citizens’ privacy through protecting their right of reputation. As a matter of fact, personal information does not only include privacy, but also other personal information and commercial secrets. Consistency of laws must be taken into consideration in the process of legislation on personal information. The relationship between the new law and the State Secrets Law, the Law for Countering Unfair Competition, and the General Principles of the Civil Law, and the relationship between general laws and specific laws must be properly handled.

Sheltering Corrupt Officials

Qing Shan (freelance writer): When our personal information becomes public knowledge and is held by others without our consent, we are justified to feel shocked, afraid and angry. Therefore, legislation for setting up a personal information protection system as soon as possible becomes an imperative task.

The Law for Protection of Personal Information will better protect the practical interests of all citizens. But I’m worried about the other side of the story.

First, government power should not be expanded under the excuse of protecting personal information. As for protection of personal information in other countries, there is a Federal Privacy Act in the United States whose first basic principle is that government must not collect personal information unless the information is necessary for one or more of its functions or activities. This is the case for most countries in the world where personal information is protected through restricting government power. I expect that this upcoming law in China could also reflect the principle of restricting government power.

The Law for Personal Information Protection is not meant to protect government officials, yet there are fears that this law may be an excuse for not publicizing the personal information of officials citing protection of personal information as excuse. Many people are now screening “personal information” of government officials, such as income and property, from the public. In a civilized society, however, basic information of government officials is no longer personal information, but also public information, which should be publicized except in special cases. The public has the right to know, and officials have the responsibility to reveal this information to the public. I hope there will be a definite stipulation in this aspect contained in the new law.

Second, protection of personal information should not give rise to the situation of “isolated information islands.” On the one hand, personal information should be protected. On the other, normal flow of information should not be hampered. Thorough protection of personal information should be based on necessary supervision and monitoring. In an information age in particular, the free flow of information is of fundamental significance to the whole society. If the protection over personal information goes to extremes, everyone will be made an “isolated information island” and society will lack unity.

How to balance public interest and personal information is one of the major concerns of law drafters and legislators to build a perfect personal information protection system while promoting sharing and free flow of information.

Proper handling of these problems will test the wisdom of our legal fraternity. I take an optimistic view of it.