Personal Information Protection without a Public Right to Privacy: Revisiting the Recent Development of Chinese Law-making regarding Data Privacy and Surveillance

Abstract

Since 2009 a series of laws, regulations and administrative rules have been made by the Chinese legislature as well as central administrative authorities to strengthen personal information protection, which has captured growing attention of Chinese and overseas jurists. It has been hailed that China is moving towards a data privacy regime which, albeit developing in a piecemeal way, follows the EU approach to embrace general principles of data protection. However, this optimistic view has overlooked the concurrent development of rule-making regarding the Party-State orangs’ collection, sharing and processing of personal information of Chinese citizens. Through reviewing those rules and judicial cases involving their application, this paper finds that the rules expand the scope of and increase the intensity of surveillance, including but not limited to imposing real name registration requirements on every aspect of the use of Internet and telecommunications. In particular, a major part of the rules were made by authorities that have parallel roles in the administrative system and the Party system, indicating an attempt to revive the Party’s close monitoring of, and hence direct control over, individuals’ behaviours in a largely marketized society. The paper argues that both the aforementioned privacy-enhancing rules and the surveillance-strengthening rules fail to provide any operable channel for citizen to challenge state surveillance measures that they deem as illegitimate, thus a general ‘public right to privacy’ which protects individual’s privacy from state invasions is yet to be established under the current legal system. Finally, the paper tries to offer different explanations on the paradoxical co-existence of privacy-enhancing law-making and surveillance-intensifying rule-making in China, and suggests the fields that need further research.