Tort Liability for Online Privacy Violations in China: The 2014 SPC Regulation

Abstract

China’s Tort Liability Law (TLL) includes two articles protecting an individual’s right to privacy. Article 2 provides a civil right of action for violation of an individual’s “right to privacy” among other “civil rights and interests.” Article 36 specifically protects these civil rights and interests from online infringement. Yet there have been few reported cases to date, possibly because Chinese courts may not have understood how to apply Article 36 to privacy matters, and so may have been unwilling to accept such cases.

In a bid to clarify, China’s Supreme People’s Court (SPC) promulgated a Regulation which clarifies procedural questions relating to Article 36 while also taking the opportunity to add several new substantive provisions. This article analyses both the procedural and substantive aspects, and concludes that the SPC Regulation has the potential to place civil actions far more in the centre of the resolution of privacy disputes in China. It gives explicit guidance on many key points to all of China’s courts in how to deal with such cases, which will both encourage potential litigants and their lawyers to commence cases, and encourage the courts to deal with them. A specific reference to compensation up to US$80,000 may assist.

The first part of this paper, ''The emergence of tort liability for online privacy violations in China', is at http://ssrn.com/abstract=2636129

Keywords: privacy, China, tort, networks, data protection, Asia