Privacy Protection in the Internet Era: The Chinese Experience

By Du Junfei

Professor, Nanjing University

Today, as the lives of the humankind have been highly ‘Internetized’, are we facing more dangers than the conveniences we enjoy? I think, at least, considering the fact of the widespread losses of privacy, the answer is yes.

Privacy is an individual’s legally protected personal right to a peaceful private life, and confidential information must not be illegally intruded on, learnt, collected, copied, made public, transmitted or used by others.

In the pre-Internet era, privacy, under the multilayered protection by the law, governments, organizations and individuals, was relatively safe. While with the advent of the Internet, issues concerning privacy in a society have extended to the cyberspace and, as a result of the characteristic of openness of cyber society, privacy faces serious threats.

In the era of traditional media, generally speaking, people did not take the initiative to reveal their private information, and even if privacy were made public improperly, it would not be easy for most people to obtain it because of the low efficiency of communication and the existence of various gatekeepers. Hence, the possibility and seriousness of violation was not significant. But with the popularization of many mainstream applications of the Internet, everything has changed.

In my opinion, the disclosure and communication of private information on the Internet come from nine major sources: (1) many online application mechanisms demand the public to upload personal information; (2) individuals might be triggered by online contacts to take the initiative to disclose personal information; (3) powerful search services can track personal information on many Web pages; (4) the close connection between different networks have weakened people’s consciousness of circles and layers in the flow of personal information;(5) organizations and institutions’ negligence in storing personal information; (6) the lack of ethics and deficiency of culture of online communities; (7) intentionally violation of personal private information by individuals or business organizations; (8) inappropriate administrative online interference; (9) and crimes that are based on Internet technology.

1. Reasons and characteristics of privacy violation

Why does privacy in the Internet era face so many dangers?

First, cyber privacy is no longer a simple mental right but has begun to get attached with economic values. In the theory of civil law, usually privacy is believed to be an independent mental personal right without material or property. But in cyberspace, privacy violations are not only out of the curiosity of prying into the others’ privacy but are mostly driven by interests. Hence, privacy acquired the nature of material and property. For example, personal data, which is the most valuable thing in e-commerce, can not only provide its providers with economic benefits but also exists as an important source for its users to gain huge economic interests. Thus, it’s a foreseeable risk that unsupervised Websites leak users’ data to their partner companies and advertisers.

Secondly, hindrances come from the law and culture. Despite some restraints from laws and regulations as well as administrative power, by observing the practices, so far China protects online privacy primarily through the model of self-regulation of the trades. But this indirect protection model has not done well in this country. Together with traditional culture and the Chinese habit of thinking, the consciousness of self-protection of privacy is still weak and civil awareness for privacy protection has yet taken shape. Consequently, online privacy has been violated frequently.

Thirdly, challenges come from technology. In contrast with the pre-Internet era, in the Internet era, it’s easier to violate privacy than to protect it, and at the same time, the cost of violating privacy is lower and the acts are stealthier.

Online private information usually includes the following: first, identity information such as names and family addresses registered before users who use online services; second, personal condition of wealth and credit data, including passwords for credit cards, bankcards, online stock trading accounts and online game accounts and etc.; third, personal email addresses, and browsing.

In our age of information, new content has been added to the traditional concept of privacy. On the one hand, online privacy overlaps with traditional privacy in terms of the power and the protection of an individual’s privacy; on the other hand, it emerges as a supplement and extension of traditional privacy. Together, they constitute the privacy in a broad sense that we refer to. We can say that online privacy is a special form of privacy in cyberspace.

The most prominent characteristic of online privacy violation is its large scope and high speed of transmission. For example in 2008, in an infamous sex photo scandal, users of the Internet downloaded, copied and transmitted the photos in an astonishing speed which could hardly be checked.

Another characteristic is that it’s difficult to determine and thus hold accountable the principal party having committed the online privacy violation. Traditional violations often happen in real life with identifiable culprits. But the anonymity of the Internet has made infringers widespread and more difficult to call to account. For example, network operators can never predict the content of the speech of their users, and it’s very difficult for them to judge if a user’s speech has or hasn’t committed a tort. If they adopt the doctrine of no-fault liability, the liabilities would be too heavy or impossible to perform. If they adopt the doctrine of fault liability, they don’t have to shoulder the responsibility of checking and supervising and thus they risk playing the role of an onlooker. All these have made it more difficult to call to account for liability for tort.

Moreover, the scope of violations of online privacy has expanded and the violated objects have diversified. Online privacy has expanded the content and forms of traditional privacy. Information, like name, gender and age, which did not belong to privacy in traditional lives, has become personal privacy in cyber society. Online privacy has also emerged as integrated rights of both personality right and property right. In the age of the Internet and information, some confidential information in cyberspace itself bears economic value; and some privacy is in connection with property rights in real life. The violation of online privacy will afflict the victim mentally as well as economically.