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Caroline Berube
China recently increased its focus on
data protection issues, in particular,
those regarding personal information
submitted electronically. Although
China does not yet have a comprehen-
sive national data protection plan, the
Government has published a number of
administrative regulations and related
advisory rules over the past year that
have significantly advanced data protec-
tion issues in China.
These regulations, some of which
are binding and some of which are
merely advisory, will likely become
the foundation on which China's data
privacy laws are built. Therefore, foreign
companies will benefit from familiarizing
themselves with these policies, even
those which are not binding, as the
principles will likely be incorporated
into subsequent regulations.
History of Data Protection in
Until recently, data protection was
only addressed at a national level in
certain provisions of general Chinese
regulations. This section summarizes
the scope of data protection under
these regulations. While the scope of
data protection has been extended by
subsequent legislation, these regulations
still remain valid.
Chinese Criminal Law
The most explicit data protection provi-
sions are set forth in the Criminal Law
of the People's Republic of China (the
"Criminal Law") which prohibits any
person from obtaining the personal infor-
mation of any Chinese citizen by theft or
other illegal means.
Additionally, the Criminal Law
prohibits private organizations and their
employees from selling or otherwise
illegally providing personal information
of any Chinese citizen they obtain during
the course of performing their services.
This provision had originally only applied
to government agencies, but was extended
in 2009 to apply to private organizations
involved in the financial, telecommunica-
tion, transportation, education and medi-
cal sectors.
Tort Liability Law
The Tort Liability Law of the People's
Republic of China (the "Tort Law")
also contains provisions regarding data
protection. Article 2 of the Tort Law
includes a right to privacy in the definition
of civil rights. Accordingly, any person
whose personal information is improperly
obtained and/or disclosed may be entitled
to file a claim under the Tort Law.
It should be noted that, although both
the Criminal Law and Tort Law contain
provisions addressing data protection,
there have not been any detailed
guidelines or interpretations regarding
the enforcement of such provisions.
Therefore, these have had only a limited
impact on the enforcement of data
protection in China.
Development of Data Protection
In 2012, the Chinese authorities issued a
number of rules, regulations, and advi-
sory guidelines regarding data protection.
This section summarizes the two primary
national regulations issued by the Chinese
authorities and discusses their impact on
The Development of Data Protection in China
Asia Pacific
Caroline Berube's practice focuses on Chinese corporate law and
commercial practice. She is especially well-regarded for advising
clients on the Asian legal structure of their companies, based on her
sound understanding of the pitfalls and advantages of most Asian
jurisdictions. She has advised clients in various industries such as
manufacturing, energy (oil, gas and mining), technology and services.
HJM Asia Law & Co LLC
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