How China see privacy under law
Article 38 of the Constitution provides that the human dignity of citizens should not be infringed. Article 39 provides that the premises should not be trespassed. Article 40 stipulates that the freedom and privacy of correspondence of citizens are protected by law. These are parts of the privacy of citizens and general principles set out by the Constitution as the basic law. Being not practical, these provisions can only provide the basis for the protection of privacy by other laws and regulations.
Civil Protection to Privacy
There is no provision identifying the right of privacy as the right of personality of citizens in the General Principles of Civil Law set out in 1986. The Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China (for Trial Implementation) does not treat the right of privacy as a separate right of personality. It only stipulates that in case anyone propagates the privacy of any other person in writing or orally, which result in a certain influence, such act should be determined as act infringing the citizen’s right of reputation. The Answers to Some Problems on the Trial of Cases Concerning the Right of Reputation in 1993 provides that anyone who disclose the privacy materials of others without the consent of them, or promote the privacy of others in writing and orally, which cause damages to the reputation of others, should be punished for infringing reputation of others. It is concluded the infringement on the right of privacy is prerequisite on the infringement on the reputation. Although Interpretation of the Supreme People”s Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts in 2001 does not put forward clearly the right to privacy or treat it as an independent civil right, the privacy is protected as an independent personality interest in Article 1 and 3. These two provisions make great progress on the legislation relating to the right of privacy. It is predicted that the right of privacy will be protected as an independent personality right.
Criminal Protection to Privacy
Anyone who intentionally infringes the privacy of others, causing serious consequences, should be subject to criminal penalties. Article 252 of the Criminal Law provides that 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. Article 253 of the Criminal Law provides that any postal worker who opens without authorization or conceals or destroys mail or telegrams shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. The infringement is not convicted of the crime of invasion of privacy, but the crime of violation of freedom of communication and the crime of opening, concealing and destroying mails and telegrams. It shows that there are many serious violations of the privacy which cannot be protected by the criminal law.