Freedom of information and privacy protection in China: resolving conflicts and promoting accountability

Dr Chen, Yongxi Clement   (Principal Investigator (PI))

Professor Cheung Anne Shann Yue   (Co-Investigator)

25

2015-04-01

48025

Freedom of information and privacy protection in China: resolving conflicts and promoting accountability

freedom of information, judicial review, privacy, public interest balance

Law,Area Studies (including Japanese Studies, China Studies, European Studies)

201409176124

Small Project Funding

2014

Completed

The right to freedom of information (FOI) and the right to privacy are two fundamental rights in democratic or transitional societies. They complement each other in holding government accountable to individuals, but they also overlap when the access is sought by to government information which involves personal information about other individuals. With the recent development of legislation in the People’s Republic of China (PRC), tension increases between the exercises of the two rights, while opportunities arise as well to promoting protection of privacy against government intrusion in the aid of FOI. The proposed research reviews how the Chinese legislation and the implementing bodies (i.e. the courts) treat the two rights in the context where they are connected. It seeks to discover whether the enforcement of law has promoted the common values of both rights and attained an acceptable balancing between them in the areas of great public concern. It will identify the inadequacies within the legal system, and make suggestions on the doctrinal development in judicial review as well as the reforms in future legislation. The specific issues to be addressed are two-fold. The first group of issues focus on the proper use of privacy exemption in FOI decisions, including: (1) to compare the scope of privacy exemption under FOI laws and rules (such as the Regulations on Open Government Information [ROGI] and implementing rules made by local governments) and the scopes of right to privacy under legislation of other fields of law, including both civil law (such as the Tort Liability Law and the NPCSC Decision concerning Strengthening Network Information Protection) and criminal law, in order to find out the inconsistency between them that may need to be clarified by the judiciary in FOI litigation; (2) from a legal realist perspective, to identify the trends in judicial decisions in 2008-2014 regarding the scope of privacy recognized in FOI disputes, and to summarise the major areas where the privacy exemption is frequently evoked (such as the use of public money by individual officials and the distribution of compensation for land appropriation by local authorities); (3) to compare the aforementioned trends with the trends in civil law judgements regarding the constitutive elements of right to privacy, in order to identify whether an overly broad scope of privacy is recognized in FOI cases; (4) to summarise the public interests recognized by courts when they conduct interest balancing test under the ROGI, so as to find out whether government accountability has been taken into account, and whether administrative judges pay due attention to the legal doctrine arising from civil law that limits the right to privacy, especially the officials’ privacy. The second group of issues to be addressed focus on the positive effects of FOI for protection of privacy against government intrusion, including: (5) to assess whether the courts sufficiently protect the right to access and correct one’s own personal information held by the government, considering that this right of information privacy should have been established under privacy laws but was actually created under the ROGI in China; (6) to observe the extent to which the courts support watch-dogs (including journalists, NGOs and other rights-defending activists) to access information that reflects the collection and use of personal information by public authorities, especially in the areas of great public concern such as surveillance of online activities, inter-departmental sharing of sensitive personal records, and sale of personal information by public institutions. And overall, from a comparative perspective, the research will (7) evaluate the judge-made rules against international best practice principles about balancing the rights to access and privacy, on the one hand, and against China’s social needs to promote both government accountability and individual autonomy, on the other.