A Constitutional View of Privacy Rights in China

China’s landmark Civil Code (the “Civil Code”) is coming into force on 1 January 2021, covering numerous civil rights and procedures, including property rights, contract rights, family law matters, tort liability, and personal rights, such as the very timely subjects of privacy and personal information. The adoption of the Civil Code is widely acclaimed as a milestone in the development of China’s legal system, as it not only codifies the fundamental rules of law on civil and commercial matters but also provides the most forceful privacy mandate yet seen in China, i.e.: “Natural persons have the right to privacy. No organisation or individual shall infringe upon others' right to privacy by spying, intruding, divulging or publicizing others' private matters. Private matters refer to the private peaceful life of a natural person and the private space, private activities and private information that a natural person does not wish to be known by others”. (Article 1032)

But the Civil Code is not emerging from a vacuum. China has long had a codified enumeration of key personal rights, as embodied in the Constitution of China (the “Constitution”).

The Constitution, with versions promulgated in 1954, 1975, 1978, and 1982, is officially the fundamental and supreme law of China, but historically it has played a more backseat role in day-to-day governance and law-making. Traditionally, it cannot be cited in court cases, and while it is in theory possible that a law could be overturned by the National People’s Congress on the basis of it being contrary to the Constitution, this has never happened. Nevertheless, the legislative process in China often makes reference to the Constitution, and general principles outlined in the Constitution often find their way into other laws. In this sense, the Constitution can be seen as both a guiding principles document for more detailed Chinese legislation, and also as an enduring tool whose language and authority can be utilized to validate new laws and legal practices.

Indeed, at one point in time, there were indications that the Constitution might have a more direct role in jurisprudence. In 2001, the Supreme Court directly cited the Constitution in its commentary to the Qi Yuling case, and this was seized upon by Chinese academics as a potential opening for the “judicialization” of the Constitution, i.e. the idea that courts should be able to draw upon constitutional principles in making judgments and protecting rights, and possibly even interpreting the law. As one of China’s senior legal scholars, Jiang Ming’an, said in an interview at the time:

“For decades, our Constitution has been packed away and put on a high shelf. For judges adjudicating cases, the Constitution was considered a ‘restricted area.’ Perhaps this has to do with the fact that some of the rights found in the Constitution are sensitive. Given that the rights touched on in this case are not sensitive, it was relatively easy to handle. We have been waiting for decades, and finally we have arrived at this opportunity which was difficult to come by. We scholars should strongly push forward with it.”

This academic advocacy is clearly cognizant of the tension between the content of the Constitution and the legal and political realities of the contemporary Chinese experience, including the exercise of State power, and indeed the Supreme Court’s action of citing the Constitution was officially repudiated in 2008, effectively ending the “judicialization” discussion.

However, even if there ever could be a greater role for the Constitution in future Chinese laws and jurisprudence, there are many issues that the Constitution does not directly address, including privacy. But this does not mean that laws relating to privacy cannot or do not have a constitutional basis. Indeed, many of China’s most important laws addressing or indirectly supporting a privacy right derive in some way from constitutional principles, including the new Civil Code.

Constitutional principles manifest through implementing regulations

The closest the Constitution comes to addressing privacy is in Article 38: “The personal dignity of citizens of China shall not be violated. It is prohibited to use any means to insult, libel or falsely accuse citizens”; and in Article 40: “The freedom and confidentiality of correspondence of citizens of China shall be protected by law”. Neither of these articles directly address privacy, and there is no clear explanation in the Constitution or in any other authoritative source as to the intended meaning or practical application of such concepts as “personal dignity”, or “freedom…of correspondence”. But these general constitutional mandates have found their way into a number of other Chinese laws, sometimes adding a reference to “privacy” alongside wording derived from the Constitution.

For example, the Criminal Law, since its first version enacted in 1979, has been taking a very straightforward approach to implementing the constitutional right to confidentiality in correspondence, leaving very little room for the imputation of additional rights, i.e. Article 252 of current Criminal Law (revised in 2017): “Whoever conceals, destroys or unlawfully opens another person's letter, thereby infringing upon the citizen's right to freedom of correspondence, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than one year or criminal detention, etc.”

In contrast, Article 3 of the Postal Law, enacted in 1986 and revised in 2009, 2012 and 2015, interprets the basic constitutional “freedom of correspondence” right a bit more broadly. On the one hand, the Postal Law copies the constitutional language around correspondence and adds an explicit right to “privacy”; but on the other hand, it supplements numerous carve-outs to that right, allowing State access to correspondence when necessary, i.e. “The freedom and confidentiality of citizens' correspondence are protected by law. No organisation or individual may infringe the freedom and confidentiality of any citizen's correspondence for any reason, except in cases where, to meet the needs of State security or a criminal investigation, public security organs, State security organs or procuratorial organs inspect correspondence in accordance with the relevant procedures prescribed by law. No organisation or individual may examine or retain any mail or remittance, unless otherwise specified by law.” This is a typical example of how very broad constitutional principles are sometimes reflected and modified in subsequent implementing regulations – additional protections may be granted, but the overall force of the hortatory constitutional guarantee will likely be limited at the same time.

Constitutional principles evolving

Novel legal principles or interpretations in China often evolve through their inclusion in laws of increasingly wider effect. For privacy protections, there is a clear escalation from narrowly targeted laws to laws of much more general applicability. The first time privacy is specifically mentioned as a general legal right was in the Law on the Protection of the Rights and Interests of Women (2005, revised) which stipulated in Article 42 that women's rights of personality, such as the right of reputation, the right of honour, the right to privacy, and the right of portrait, shall be protected by law. (Note that while the Postal Law was promulgated much earlier, in 1986, the “privacy” right mentioned there is limited to the scope of correspondence.)

Then, the right to privacy was, for the first time, included among other “civil rights and interests” in the Tort Law (2010), along with other rights such as the right to life, the right to health, rights associated with name, reputational rights, etc.

Looking to the new Civil Code, this is derived from the General Principles of the Civil Law (promulgated in 1986, revised in 2009) and the General Rules of Civil Law (2017). The former does not specifically address a right to privacy – it only mentions “personal dignity”, the same wording as stipulated in the Constitution. But the latter, in Article 110, explicitly calls out privacy as one of the rights that a natural person shall enjoy, though without any explanation of what this right might entail. Those will only come with the new Civil Code (2021).

The progression from the constitutional term “personal dignity” under the 2009 General Principles of Civil Law to “privacy” under the 2017 General Rules of Civil Law also reflects academic and jurisprudential discussions ongoing throughout that period and before as to what exactly a constitutional right to personal dignity encompasses, with many commentators in more recent years taking the strong view that a privacy right is necessarily implicit. This is reflected in the emerging prominence of privacy rights in numerous Chinese laws, including those mentioned above, even if practical enforcement and of course privacy vis-à-vis the State is still quite fragmentary.

The Internet Changes Everything

As the next step in this evolution, the rapid growth of China’s internet sector, and the resulting clamour for new laws addressing this sector, has brought a new urgency and new context to privacy regulation. Numerous laws on data protection and security have been issued in the past 10 years, from the Cybersecurity Law, to the Order for the Protection of Telecommunication and Internet User Personal Information, the Measures to Identify Illegal Collection and Usage of Personal Information by APPs, and the Personal Data Protection Guidelines, most of which embody either explicitly or implicitly the right of internet users to keep their personal data private and to control its use, and in some cases take strong inspiration from privacy regimes in other jurisdictions, such as the EU’s GDPR.

All of these laws have multiple functions, including the creation of a coordinated apparatus for comprehensive State oversight of information infrastructure and communications. But they also respond to very real consumer concerns relating to online privacy and security in relation to the private sector and criminal actors, to which the government is highly attentive. Crucially, and in contrast to most of the other laws currently addressing privacy in China, many of China’s laws on data protection include specific remedies and penalties for failure to protect data privacy or otherwise comply with the legal requirements. Civil cases by users against infringers, most often internet platforms, or even cases between various internet platforms, are increasingly common, and direct enforcement by the governments through administrative or criminal penalties is also growing, often in response to newsworthy data leaks.

As a result, the concept of privacy under law has ever growing currency in Chinese culture and in courts. There is reason to believe that the long-standing assertion by several prominent constitutional scholars that China’s constitution protects privacy, despite the lack of explicit wording to that effect, will only grow stronger, and may in fact become the consensus view among academics, judges, and the Chinese people. This would not be the first time that the accelerating effect of the internet and high-tech has created new norms, including in China. What remains to be seen is whether a growing realization of privacy rights, enabled by laws, courts, and social expectations, will have an effect beyond interpersonal and private sector conflicts. The new Civil Code, the older Postal Code, and all of the new laws on the internet and data privacy give ample space (and sometimes create the tools) for the State to exercise its security and surveillance functions.

But the Chinese Constitution has something to say about this as well: “Citizens of the PRC shall have the right to criticise and make suggestions regarding any state organ or state employee, and have the right to file with relevant state organs complaints, charges or reports against any state organ or state employee for violations of the law or dereliction of duty”. Historically, this has not been the most used or cited constitutional guarantee, but perhaps a growing consciousness of rights to privacy and personal dignity, themselves rooted in the Constitution, will open a window.

Justina Zhang, Senior Partner, and
Eric Johnson, Partner,
TransAsia Lawyers