Establishment of Privacy Rights in China and its Specialities【Research Article】

Establishment of Privacy Rights in China and its Specialities
Mue I *

Abstract
The spread of modern information technology such as artificial intelligence (AI) and Big Data
has significantly changed the lives of the population. Governments have also introduced policies
that utilise information technologies to solve social problems. Because of this change, information
derived from the population is considered an essential resource when there is an apparent conflict
between the government and the people. Accordingly, the question of how the population's privacy
rights should be protected in such a situation has become the focus of recent attention. However,recognition and protection of privacy rights diverges by country, especially depending on politicalstructure, social situation, and cultural basis.
First, it is essential to clarify the reality of privacy rights in China, which has entirely different
values from Western society. It is true that in recent years, China has established legislation toprotect privacy rights and personal information; however, at the same time, the Government ofChina has introduced modern information technologies such as AI, Big Data, facial recognition
systems and gathering personal information on the population (for example, a social crediting
system prepared for its introduction and Health Code as a COVID-19 measure). While foreignstates criticise such policies as an infringement of privacy, domestic voices in China demonstratehigh appreciation. Therefore, it is necessary to clarify how privacy protection and associatedspecialities have been established.
In this paper, the specialities of privacy protection in China are analysed. Unlike Western
societies that focus on freedom and dignity within the private sector, China protects the safety of
individuals while solving social problems by prioritising public welfare.

*

Author: Mue I (Email: jd202001@g.hit-u.ac.jp; Graduate School of Law, Hitotsubashi University)3

Nagoya University Asian Law Bulletin Vol.7 (March 2022)

Contents
I.

Introduction

II. Traditional Concept and Development of Privacy Rights
III. The Concept of Privacy Rights in China: Its Establishment and Changes
IV. Constructing Privacy Rights in China
V.

The Speciality of Privacy Protection in China

VI. Conclusion

I.

Introduction
Since the beginning of the twenty-first century, modern information technologies (such as theInternet, cell phones, artificial intelligence (AI), and Big Data) and biometrics have spread around theglobe, changing people’s behaviours and activities significantly. This not only changes the lives of the
population but also affects how to manage a nation through policy application. Such changes in the
new era mean personal information is considered an essential resource of the state, and the outcomeof policies that utilise information technology have created significant social effects.
Implementing such policies in support of modern technologies has created conflict between thegovernment and the wider population. This includes concerns about how to protect the privacy rightsof the public and how to prevent infringement of personal rights by the government through the
expansion of public rights in terms of the use of personal information. Moreover, how to handle theissues of privacy rights infringement that occur as a result of implementing these policies is also a
focused task.
When we consider the aforementioned issues, it is also essential to consider how privacy rights
protection differs depending on state structure, cultural ideas, and values. According to Daniel J.
Solove, the new concept of privacy rights is a pluralistic concept with pluralistic values. Privacy rights
are protected differently depending on the society, and values attributed to interests that conflict withprivacy differ by state. As privacy has multidimensional characteristics according to political structure
or cultural basis, it is inevitable that the specialities of privacy rights will be analysed with a goodunderstanding of the state’s unique social, political, and moral-ethical background when discussing
the concept of privacy rights in a state. In fact, ‘cultural attributes toward privacy are so divergent that4

Establishment of Privacy Rights in China and its Specialities

little can be done to bridge the gap’, as ‘there is no shared worldwide understanding of privacy’ but‘just several localised notions’. 1
The question then arises: what are the privacy rights in Chinese society, where values differ
entirely from the West? This is an original and exciting research topic. Much legislation that protects
personal information and privacy has been enacted in China. Conversely, the Government of China
also actively tries to implement modern information technologies, such as AI, Big Data, and facerecognition systems, using the mass-collection of personal information about the Chinese population.
This means that the Government of China has now become a significant owner of personal informationof the general population, which is also utilised for many government policies. For example, the social
crediting system and health code is used as a COVID-19 measure. While the handling of personal
information in China has been criticised as an infringement of privacy rights and as a potential meansof establishing a ‘surveillance state’ by foreign states, domestic voices mostly praise such policies.
In response to the gap in understanding Chinese policies that utilise personal information between
domestic and foreign ones, questions arise in terms of privacy and privacy rights in China, and whether
any originality or speciality in the way Chinese privacy rights arose can be determined. With thesequestions in mind, this paper will clarify the reality of privacy rights (and any speciality), focusing on
personal information and privacy protection issues within Chinese policies that utilise personal
information gathered from the population.
II. Traditional Concept and Development of Privacy Rights
More than 130 years have passed since Samuel D. Warren and Louis D. Brandeis first advocatedthe idea of privacy. Privacy has been considered ‘the most inclusive right’, which is ‘the essence’ fordemocratic essence has been recognised as a general right that needs to be protected, as it is essential
to ensure ‘emotional and psychological peace’ and is ‘the core of freedom’. 2 The theory and conceptof privacy rights changed with the flow of society and were imported to many countries, which led tothe creation of new concepts of privacy rights adapted to different social environments. 3
However, just like Warren and Brandeis could not predict how quickly information technology
would develop, this has occurred much quicker than we might have imagined in recent years, resulting
in more complicated privacy issues than before. Currently, privacy rights comprise more than theDaniel J. Solove, Understanding Privacy, (the USA: Harvard university Press, 2008), p185.
Olmstead v. United States,277,U.S.438,478, (1928) (Brandeis,J.,dissenting); Ruth Gavison, ”Privacy and the Limits of Law”,89
Yale Law Journal, (1980), pp.421-455; Lake v. Wal-Mart Stores, In.,582 N. W.2d 231,235(Minn,1998);Pub. Utilities.
3
Julie C. Inness, Privacy, Intimacy, and Isolation, Oxford University Press, (1992), p.56.
1
2

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original concept and definition—the right to be left alone or the right to control individual personal
information—and the range of protection is more comprehensive. Furthermore, privacy rights as a
research topic has become more complicated with the introduction, spread, and application of modern
information technologies such as AI, Big Data, facial recognition systems, the Internet, and mobile
phones, together with the government implementation of governance policies that utilise suchtechnologies.
To escape such complications, Solove has demonstrated a new approach to the concept of privacy
rights in recent years. His theory guides a multidimensional and pluralistic understanding of privacy
rights through a bottom-up method, using Wittgenstein’s Family Resemblances Approach rather thanprevious existing definitions. 4This means privacy is:“[a] pluralistic concept and therefore its value should also be understood pluralistically, as
it does not have a standardised value. [Moreover], the value of privacy should be understoodby the degree of the contribution that the privacy has made to the society, as privacy protects
individuals as there is a benefit to the society to do so, [and] the freedom of individuals should
be justified from the perspectives of its social contribution. Privacy is not just a freedom fromcontrol in society but is a protection of a socially established structure. Hence, the value ofprivacy does not depend on privacy itself in different forms but depends on the range ofactivities protected by privacy. ” 5

Privacy rights, which are diverse in their characteristics, have a background in cultural ideology,social structure, political structure, and many other factors. According to Solove’s new concept,
cultural differences are most apparent in the values placed on the benefits that contradict privacy. 6
The differences in privacy rights are applied when policies or legislation are structured and enforced.
De George stated that questions such as how privacy is structured, how much it is essential, and how
much it should be protected vary in different societies, mean that the cultural structure itself affect thevalues of privacy in that culture. 7 Furthermore, privacy rights change in response to historical andsocietal changes.

Ludwig Wittgenstein , Philosophical Investigation §§91,43(G.E.M. Anscombe trans), (1958).
Daniel J. Solove, Understanding Privacy, (the USA: Harvard university Press, 2008), pp66-77.
6Daniel J. Solove, Understanding Privacy, (the USA: Harvard university Press, 2008), p183.
7
Richard T. De George, The Ethics of Information Technology and Business, (the UK: Blackwell Publishing, 2004).
4
5

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A typical example of differences in privacy rights due to cultural differences is demonstrated by
the concept in the United States and Europe, already analysed in many existing studies. Looking moreclosely, it is evident that while privacy in the United States ensures freedom, in Europe its purpose is
to seek dignity; therefore, the concept is associated with two utterly values that are fundamental ineach society. 8 These concepts continue to change as modern society evolves. Because China holds
completely different values from those in Western society, this paper continues by examining whether
there is any speciality and originality in the Chinese approach to privacy rights.
III. The Concept of Privacy Rights in China: Its Establishment and Changes
Despite various privacy rights being established around the globe, there is no standard definitionor mutual understanding of what privacy means. 9 Therefore, when discussing beliefs about privacy
in a country, it is important to consider its original background and to remember that the cultures andhabits of that specific nation and region will affect the legal characteristics of privacy. Accordingly,
researchers need to look into the conditions and social situation of the nation or region individuallyand in detail to focus on the concept and characteristics of privacy rights specific to the nation, region,or individual. Hence, this chapter will analyse how the western concept of privacy was adapted anddeveloped in China, where its values differ entirely from Western countries. Further, it will be clarified
whether the Chinese concept of privacy rights is unique.
In recent years, terms such as ‘personal information protection’ and ‘privacy right protection’began to be used in China, from which we can see rapid progress in the establishment of legislation in
the field of personal information protection. A few recent examples of legislation include theimplementation of the Civil Code of China (January 01, 2021) and the Personal Information Protection
Act of China (adopted August, 20 2021; implemented November, 01 2021). However, there seems to
be a contradiction between the legislation implemented and policies enforced by the government ofChina, as they enforce policies that collect and utilise personal information through modern
information technologies and Big Data. By contrast, the government also tries to protect the privacy
rights and personal information of the population through legislation. Accordingly, this section will
first examine the characteristics of Chinese privacy protection and public opinion toward the utilisationof personal information.

James Whitman, “The Two Western Cultures of Privacy: Dignity Versus Liberty”, 113 Yale Law Journal, (2004), p1151, p1160,
p1163, p1171, p1204, p1164, p1221.
9
Hiroshi Miyata, Return of Privacy Rights – Conflict between Freedom and Pride, (Japan: Chuo University Press, 2015), pp112113 （宮田紘『プライバシー権の復権―自由と尊厳の衝突』）.
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As I (2020) noted, the concept of privacy rights does not originate from mainland China, andhistorically, even the term ‘privacy’ in relation to rights barely existed. 10 Traditionally, Confucianism
has been the basis of morals and ethics in China; hence, a liberal mindset did not exist and the conceptof privacy, which is heavily associated with freedom and individualism, was not present within thecultural base. 11 Furthermore, due to modern China’s historical and political background, the topic ofprivacy rights protection was not the focus of attention in China. It is therefore commonly recognisedamong China academics that the western mindset of ‘privacy’ barely existed. Therefore, the Westernconcept of privacy, such as ‘the right to be left alone’ in which ‘private life will not be interfered withby others’ is something that has been imported from foreign states and hence barely existed in Chinesesociety.
The protection of privacy rights in China was born along with the development and promotion of
the informatisation of society. Primarily due to the increase in social crimes, the need to protect
personal information gradually increased, and its importance started to be acknowledged. Academic
discussions within China regarding privacy rights and the establishment of the legal structure only
really commenced in recent years. Hence, the development of privacy rights protection in China was
a very gradual process from establishing mindsets of privacy protection to establishing legislation. In
other words, the Western concept of privacy rights protection has been accepted in response tochanging needs among Chinese society with some adaptation to ‘the climate’ of China; therefore, it
can be said that a concept of privacy rights that is original to China was formed. The following sections
will analyse two points: (1) privacy rights development in China from the perspective of language, (2)privacy right development in China from the perspective of morals. 12
1. Privacy Rights and Changes in Wording
Language is one of the most essential and representative categories to examine at the roots ofculture and thought.
“Languages seem as if they are unrelated to political authorities as they are naturalactivities of human society. However, languages also have fast connectivity with politics like10
Mue I, “Personal Data Protection and Privacy Rights in China’s COVID-19 Measures”, The Hitotsubashi Journal of Law andInternational Studies Vol. 20 No. 1, (2021), pp541-576（伊夢瑛「中国の新型コロナウイルス感染症対策から見る個人情報保護とプライバシー権」）.
11
Xiuzhe Wang, “Research on Constitutional Protection of the Privacy of Our Nation”, (China: China Civil Law Publishing, 2011),
p.372-394（王秀哲『信息社会個人隠私権的公法保護研究』）.
12
For more detailed explanation of these two sections, please refer to: Mue I, “Personal Data Protection and Privacy Rights in
China’s COVID-19 Measures”, The Hitotsubashi Journal of Law and International Studies Vol. 20 No. 1, (2021), pp541-576（伊夢瑛「中国の新型コロナウイルス感染症対策から見る個人情報保護とプライバシー権」）.

8Establishment of Privacy Rights in China and its Specialities

regions and politics. The artificial side of languages are quite strong, as we see from theenactment of official languages and standard languages; therefore, the modern politicalmechanisms show that “the states create languages”. 13

Languages tend to reflect the social awareness and morality of the people of that era. Therefore,changes in the wording of ‘privacy’ in the Chinese language also reflect the changes in traditional
culture, moral ethics, timelines, and society in China.
The word ‘privacy’ is ‘Yin Si’ (隐私) in Chinese, of which the original definition slightly differsfrom the definition of privacy currently in use. The original definition of Yin Si meant to hide a secretfrom others, indicating something with negative nuance that could result in embarrassment or a lossof prestige, and that could result in trouble if known by others. In detail, these secrets include
something related to the nature of bodies or scandals and issues within households and are to be hidden
to avoid embarrassment and disgrace.
In the Chinese language, the proverb ‘we will not leak our scandals within the household tooutsiders’, which explains the definition of privacy in traditional China. In other words, as Yin Si in
Chinese means to keep issues within the household secret from outsiders, there is a difference in theterminology compared with other states. While the Western term emphasises rights with strong
objectivity, the Chinese term Yin Si emphasises secrecy in a subjective way. Therefore, the term andmindsets of Yin Si and Yin Si Quan (隐私权), which reflects “privacy rights” barely existed in China
originally. 14 Indeed, Liming Wang, a Chinese legal scholar, pointed out that ‘in the Chinese historyof few thousand years, up until the 1980s, the term “Yin Si” was recognised as a negative term. Chinesesociety was unfamiliar with the concept of “privacy rights”, therefore, (now) topics such as facerecognition technology were not focused nor discussed much in China’. 15 Another legal scholar,
Xiuzhe Wang, also stated that ‘under the mindset of eliminating values of individualism, a concept ofprivacy, which tries to hide personal life, had no basis for growth in China’s long history’. 16
The Western concept of privacy rights has been imported from foreign countries for Chinese
people. Even during the 1980s with the early development of reform and the Open Door Policy, the13
Katsuhiko Tanaka, Languages and Nations, (Japan: Iwanami Shoten, 1991), p.19, （田中克彦『ことばと国家』）; Toshiho
Terajima, Overview of Political Philosophy, (Japan: Horitsu Bunka Sha, 2019), p.116 （寺島俊穂『政治哲学概説』）.
14
The relationship between personal information, privacy rights (Yin Si Quan) and privacy (Yin Si) in China is planned to be
discussed in another paper.
15
From the speech at the International Big Data and Privacy Conference held in Hong Kong in 2017, written in the blog of:Yasheng Wang, “Face Recognition – Privacy and Differences between China and the US”, (16th December 2019), accessed on 20thDecember 2021, http://huangyasheng.blog.caixin.com/archives/217792 (黄亚生「人脸识别，隐私和中美差异」).
16This is a common understanding among the academics in China: Xiuzhe Wang, “Research on Constitutional Protection of thePrivacy of Our Nation”, (China: China Civil Law Publishing, 2017), p.372-394（王秀哲『信息社会個人隠私権的公法保護研究』）.

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Western concept of privacy rights in Chinese society (such as ‘private life will not be interfered withby others’ and ‘the right to be left alone’) had little effect on the Chinese population. Changes inlanguage occurred after 2000. After China’s economic development reached a certain level, thepopulation enjoyed material abundance with changes in personal income and property. As Westernpolitical philosophy and ideology started to inflow even more, the desires of the population also
increased. Social instability increased as the population faced broader economic markets, and the needto protect individuals from different crimes became a concern. All of these factors led to the emergenceof privacy as a right in China. 17 Nevertheless, in the early stages, claims that privacy should beprotected as an individual right were only limited to academics and specialists and had not yet spreadamong the wider public.
The rise of the mindset to protect privacy rights in China had a deep relationship with thedevelopment and penetration of modern information technologies in Chinese society. Furthermore,
the progress in information technologies—such as the Internet—has fast-forwarded the promotion andpenetration of privacy rights in China. The population of China has learnt the importance of personal
information, especially through the use of mobile phones. As social crime increased, people became
more concerned with protecting personal information and privacy rights by hiding individuals’ private
lives to protect them from criminals and keep their personal information safe. The term Yin Si thuschanged definition, meaning individuals’ private lives could be hidden to protect the rights of theindividual. 18
In other words, along with changes in society, social needs, ideology, and moral ethics, the term
privacy penetrated the Chinese language over an extended timeframe, to the point that it became adaily used term with a definition close to that of privacy in Western societies.
2. Chinese Moral Ethics and Privacy Rights
When discussing privacy rights, we can argue from various perspectives. Many academics
conduct their research from the perspectives of law, legal philosophy, and moral ethics, which isnecessary to see the basis of recognition of privacy rights by the population. 19 We must note that
Chinese moral ethics is completely different from liberalism, the basis of modern political philosophy,
which values freedom. The core value of privacy rights in liberalism praises individuals, personality,
Xinyue Gan, Limitations to Privacy Right in Big Data Era, (2019), accessed on 20th December 2021,
http://media.people.com.cn/n1/2019/0619/c427924-31167715.html （甘馨月『大数据时代隐私的边界及限度』).
18
Xiuzhe Wang, Research on Constitutional Protection of the Privacy of Our Nation, (China: China Civil Law Publishing, 2011),
p.372-394 （王秀哲『我国隐私权的宪法保护研究』）.
19
Daniel J. Solove, Understanding Privacy, (the USA: Harvard university Press, 2008), p1.
17

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and autonomy, considering privacy rights as individual rights. 20 In his book On Liberty, John StuartMill stated that, ‘in humans’ activities, what we must obey society is something related to others. Of
course, their independence is absolute regarding parts that are related only to themselves. For
themselves, their body, and their spirits, individuals have the authority’. 21
When comparing the traditional philosophy of China with Western ideas, Michael Sandel statedthat in liberalism, ‘humans must be able to choose their life plans freely, and the society is allowed toprevent people from harming others but must not prevent people from making choices that would
uphold their moral personality for themselves’. 22 In other words, liberalism praises individualism andfreedom, and ‘the value of privacy right is that its basic core lies upon the freedom and pride ofindividuals and that it emphasises the characteristics of individualism and liberalism as a personality
right that must not be violated’. Therefore, for liberalists, ‘recharge of virtue is a private matter, not a
public matter’. 23
However, in China, with a Confucianist moral, ethical basis, such liberalism mindsets did notexist. Just as privacy rights barely existed in China, the mindset of privacy barely existed in Chinese
ethics or philosophical thought. The core of Confucianism is the community, which has family as its
basis. 24 In its moral ethics, ‘the boundary between private moral and public morality is not that clear’and all humans should act in favour of the community to which they belong. 25
In the Chinese way of thinking, the first and most basic social institution that human beings
encounter is family. 26 In China, filial piety to parents and loyalty to family are valued within themindset that considers family as a community, and that society is community-centred. The family is
structured according to a patriarchal system, and because it is the father (as the head of the household)
who holds the most authority, a father is considered someone to be feared and respected. At the sametime, a father would absorb household members’ personalities and become the ‘face’ of the household
externally. In other words, Yin Si of a father equates to Yin Si of the household, and all family members
must fulfil their duty by conducting or satisfying piety, obedience, and loyalty for the harmony of the20
Tetsuki Tamura, The Start-line of Political Theories, (Japan: Yuhikaku Studia, 2017), pp.37-50 （田村哲樹『ここから始める
政治理論』）.
21
John Stuart Mill, On Liberty, (the UK: Longmans, Green and Company, 1865).
22
Michael Sandel, Paul J. D’Ambrosio, Encountering China: Michael Sandel and Chinese Philosophy, (the USA: Harvard
University Press, 2018).
23
Xiuzhe Wang, Research on Constitutional Protection of the Privacy of Our Nation, (China: China Civil Law Publishing, 2011)
p.47 （王秀哲『我国隐私权的宪法保护研究』）.
24
Chisako Masuo, Chinese Principles of Action – International Relations Decided by Domestic Trends, (Japan: Chukoron-Shinsha,2019), p.62（益尾知佐子『中国の行動原理』）.
25
Michael Sandel, Paul J. D’Ambrosio, Encountering China: Michael Sandel and Chinese Philosophy, (the USA: Harvard
University Press, 2018).
26
Xiuzhe Wang, Research on Constitutional Protection of the Privacy of Our Nation, (China: China Civil Law Publishing, 2011)
p.47 （王秀哲『我国隐私权的宪法保护研究』）.

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family as a community. Furthermore, the whole nation is also considered a ‘big family’, just like ahousehold; therefore, the institutional structures of both are similar, and the population have a strong
bond to each other. Hence, historically, the highest governor of the nation is the emperor, and theywould be the symbol of the state as the head where authority gatherers within the centralised system. 27
Under such morality and valuation that weighs heavy on the community bond and individual
humanity, people create strong solidarity and try to materialise harmonious relationships; however,
due to this moral ethical stance, individualism and liberalism in China have disappeared from thehousehold as a society. 28 Furthermore, according to this Chinese way of communitarianism,
individuals judge their position in the community and decide on the balance between how much of
their privacy is to be shown or hidden. There has therefore not traditionally been a mindset of privacy
rights that priorities the freedom and rights of individuals while emphasising ‘self’ does not exist, andhistorically, an environment to establish such mindset has not been created to the point that it is stillfragile even today. 29
IV. Constructing Privacy Rights in China
In recent years, terms such as personal information protection and privacy protection have begun
to be used in China, and the establishment of legislation to protect privacy has also significantly
progressed. On January 01, 2021, the Civil Code was enforced, and on August 20, 2021, the Personal
Information Protection Law was adopted, enforced from November 01, 2021. Examining policies
implemented by the Government of China in recent years, many issues such as infringement of privacy
rights and contradiction with legislation emerge as the utilisation of personal information continues toincrease through modern information technologies and Big Data.
The concept of privacy rights barely existed historically and still exist very little in China. Since
the ancient era, Chinese moral ethics have been based on Confucianism as a foundation; therefore,
libertarianism has not existed in the mindset of the people. 30 Furthermore, due to the speciality ofmodern China’s historical, social and political structure, privacy rights simply barely existed until

27
Chisako Masuo, Chinese Principles of Action – International Relations Decided by Domestic Trends, (Japan: Chukoron-Shinsha,2019), p.87（益尾知佐子『中国の行動原理』）.
28
Tom Butler-Bowdon, 50 Politics Classics Freedom Equality Power: Mind-changing, World-changing Ideas from Fifty Landmark
Books, (the USA: Discovery Publisher, 2016), p.404.
29
Xiuzhe Wang, Research on Constitutional Protection of the Privacy of Our Nation, (China: China Civil Law Publishing, 2011)
p.47 （王秀哲『我国隐私权的宪法保护研究』）.
30
Xiuzhe Wang, Research on the Public Law Protection of Privacy Rights in Social Crediting Society, (China: China Civil Law
Publishing, 2017), pp.372-394（王秀哲『信息社会個人隠私権的公法保護研究』）12

Establishment of Privacy Rights in China and its Specialities

some time after 1949. Because of this background, China had no ‘genes’ in terms of the westernmindset, being a relatively new concept that was imported from abroad.
The mindset of privacy protection in China was born with the development and spread of
digitalisation throughout society. In particular, the significance of protecting privacy began to berecognised alongside the increase in crime related to personal information. Moreover, the population
started seeking personal information protection from the Government of China. However, theestablishment of privacy rights mindsets and legislation for privacy protection in China was gradual,
and only really became established in the past few years. The following sections will analyse how
Western privacy rights were imported into and structured in China, from the perspectives of domestic
academic research and legislation within China.
1. Academic Research regarding Privacy Rights
Due to traditional moral ethics and historical factors, privacy protection in China faces threesubsequent difficulties. First, the public authority of the government is absolute in China as a result of
the impact of its political and social structure and traditional moral ethics, leading to the concept ofcommunity supremacy doctrine being penetrated across Chinese society powerfully. As a result, there
is no strong, legally binding legislation against privacy rights infringement by the public authority.
Second, as the Government of China actively promotes its digitalisation strategy, China has rapidly
become an information society. Using information technologies, the government can easily collect thepersonal information of the population, and legislation to protect private rights has not yet beensoundly achieved. Third, it is true that legislation to prevent privacy rights infringement in the private
sector has gradually become legalised; however, it is still in its infancy and its effectiveness is still
weak.
With such difficulties, Chinese academics have studies how to protect privacy via legislationfrom two perspectives: first, privacy should be protected from other individuals and private
institutions; and second, privacy should be protected from states and public authorities. 31 The former
concerns civil matters, while the latter concerns public authorities of the state.
First, whether privacy should be protected as a right in China began as research in civil law. The
first paper regarding privacy rights in China, Analysis on Legal Protection of Privacy Rights of theGeneral Population, was published in 1985, and stated that ‘privacy is a secret in an individual

Xiuzhe Wang, Research on Constitutional Protection of the Privacy of Our Nation, (China: China Civil Law Publishing, 2011),
p.47 （王秀哲『我国隐私权的宪法保护研究』）.
31

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physical body and private life and is a legal right of the person who is the target to adjust privacy’. 32
It was also argued that privacy rights include the right to be protected by legislation when the freedomof the individual, physical body, and secrecy of private life (and the right to keep them secret) isviolated’. 33 Considering the social background in China in the 1980s, discussing such content was
extraordinarily bold and innovative; however, because the cultural revolution had only just ended, thispoint of argument was not very popular amongst academic society in China. Privacy rights became
the centre of focus in Chinese law society due to a further paper published in 1990: A Research on
Privacy Rights. 34 This paper led the way to actively arguing for privacy rights in legal and politicalscience studies. 35
In recent years, research on the definition of privacy rights has been conducted, although there
are many different interpretations. For instance, the Chinese civil law scholar, Wanlin Peng, explained
privacy as ‘a secret within daily lives that other general populations do not want to be published or
known’. 36 Meanwhile, Tangfa Chen stated the reality of privacy is ‘a combination of individual andhiding’. 37 However, China has an original social and political structure, culture, ethics and ideology;
therefore, there had been various aspects concerning the theory and concept of privacy, such as: against
who should privacy be protected as an individual right, how much privacy should be protected, against
who personal information should be handled carefully, how much personal information should beprotected, and what would determine whether personal information was protected. 38
Part 4, Chapter 6, of The Civil Code of China, which concerns personality rights, was adopted
on May 28, 2020. This included regulations related to personal information and privacy protection,
the definition of privacy rights, and the necessity to provide protection. This demonstrates that theGovernment of China has officially considered privacy rights and personal information protection and32
Xiuzhe Wang, Research on Constitutional Protection of the Privacy of Our Nation, (China: China Civil Law Publishing, 2011),
p.47 （王秀哲『我国隐私权的宪法保护研究』）.
33
Xiaoping Chen, “Discussion on the Legal Protection of Chinese Population’s Privacy Right”, Evaluation on Law, Law Review
Vol.5, (1985), (陈啸平『论公民隐私权的法律保护」).

Xinbao Zhang, “Research on Privacy Right”, Legal Research Vol.3, (1990), (张新宝『隐私权研究』).
Mue I, “Personal Data Protection and Privacy Rights in China’s COVID-19 Measures”, The Hitotsubashi Journal of Law andInternational Studies Vol. 20 No. 1, (2021), pp541-576（伊夢瑛「中国の新型コロナウイルス感染症対策から見る個人情報保護とプライバシー権」）.
36
Wanlin Peng, Civil Law, (China: China University of Political Science and Law Publishing, 1999), (彭万林『民法学』).
37
Tangfa Chen, The Dissemination of Private Content in New Media and the Review of the Concept of Privacy, Monthly
Academics, (2014), pp.13-21, （陈堂发『新媒体涉私内容传播与隐私权理念审视』).
38
Liming Wang, Study on the Major Difficulties of the Personality Law of the Civil Code, (China: China Legal Publishing, 2017),(王利明《民法典人格权法重大疑难问题研究》): Junju Ma and Heng Wang, Inappropriateness to Adopt the Concept of General
34
35

Personality Rights in Our Future Civil Code, (China: Hebei Law Study, 2012) Vol8, (马俊驹、王恒《未来我国民法典不宜采用
一般人格权概念》); Lixin Yang and Zhaocheng Liu, Abstract of Personality Rights and the Structure of Personality Rights
System, China: Legislation Study, 2011), Vol1, (杨立新、刘召成《抽象人格权与人格权体系之构》).

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Establishment of Privacy Rights in China and its Specialities

represents a big step forward for privacy and personal information protection in the field of Chinese
civil law. However, ‘it is not enough to protect privacy right only through civil rights. China has asocialist system, and there is a trend that the state and public authority tend to dominate and infringe
private rights. Therefore, limitations to public authority should not be rough and vague if privacy rights
are to be protected seriously’. 39 China successfully transitioned to a market economy after the 1980s,
and individuals and private enterprises began to witness their release from the public authorities (atleast in terms of the economy). Meanwhile, the Government of China utilises modern technologies
such as AI and Big Data to utilise personal information of the population to implement different
policies. This has resulted in a situation where the government’s authority expands while thepopulation has lost their authority to control personal information, meaning the risk of private lives
being infringed continues to increase.
Some scholars in the field of policy, politics and law have taken on this serious issue by
researching the relationship between the state and private individuals, together with the imbalance
between public welfare and protection of private rights. 40 Significantly, research on the methods oflimiting the public authority of the Government of China has been conducted, and legal suggestions
to solve the violation of private rights for public welfare have also been made. One recent example
stated that ‘due to the renewal of [the] Chinese constitution, it is essential, from the perspectives ofhuman rights, to soften the conflict between public welfare and private right through methods toprotect the minimum line of privacy protection’. 41 Wang, a scholar in the field of the Chineseconstitution, has stated that infringement of privacy rights by a public authority is a matter ofprotection of the fundamental rights of the constitution. He further stated that the Chinese constitution
clearly states:“Personal rights and dignity should not be violated, private residence should not [be]trespassed, and freedom of communication and secrets of the general population must be
protected. These contents are the origins of protecting the privacy of the Chinese population;
however, in China, the constitution is applied indirectly through applications of individual laws.
Therefore, the protection of privacy rights through the constitution cannot be said to be effective39
Mue I, “Personal Data Protection and Privacy Rights in China’s COVID-19 Measures”, The Hitotsubashi Journal of Law andInternational Studies Vol. 20 No. 1, (2021), pp541-576（伊夢瑛「中国の新型コロナウイルス感染症対策から見る個人情報保護とプライバシー権」）.
40

Kaixiang Yang, Introduction to Constitutional Right to Privacy, (China: China Legal Publishing, 2010), (杨开湘『宪法隐私权导论』).
Lingyun Yu, Hongfang Wang, and Qing Xu, Privacy under the Camera, (China: Chinese People’s Security University
Publishing, 2008), (余凌云、王洪芳、许晴『摄像头下的隐私权』).

41

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properly, and the need for privacy rights protection by limiting public authority through theconstitution further rises.” 42

He also claims that it is a new challenge for the renewal of the constitution in China to decide
how to control and limit public authority from privacy rights infringement through to essential proper
protection in the constitution. 43
However, there are many counterarguments toward this point of view. Xiao Cheng stated:“The Chinese way of privacy right differs completely from the ones in the American law,as Chinese privacy rights is not a right protected in the constitution. China has an entirely
different cultural and ideological foundation and political structure from the ones in the western
society in the first place; therefore, it is challenging to accept the western concept of privacy
rights as it is. Privacy rights in China are always considered a civil right and never as a right inconstitutional law, as from the legislation to application of the law, privacy rights have now
been recognised as personality in civil law through concepts such as the protection of reputationand personal interest protection.” 44

Scholars have also researched administrative law perspectives, apart from constitutional
arguments. 45 This field of research focuses on the relationship between privacy protection and publicauthority for intra-societal governance policies. Research is also actively conducted on issues forwhich the government expands the range of personal information utilisation to solve social issues. An
increasing number of researchers agree that ‘the value of privacy protection in administrative law is
the equilibrium between public welfare and private benefits, and hence the government has
responsibility on both to protect the privacy and not to infringe private rights’. 46 Furthermore, muchresearch exists on the subject of the establishment of Big Data and surveillance systems, utilisation of
personal information through information technologies, and the standard of publication of personal
Art 37-40 of the Constitution of China
Xiuzhe Wang, Research on Constitutional Protection of the Privacy of Our Nation, (China: China Law Publishing, 2011) p.2（王秀哲『我国隐私权的宪法保护研究』）.
44
Xiao Cheng, Research on Legal Issues in the Development of Personal Information to Data Interconnection Politics and Law,
Main Seminar, Vol.8 (2020), (程啸『个人信息向数据互联发展中的法律问题研究政治与法律』).
45
Zhenyu Tu, Research on Constitutional Privacy Protection – A Theoretical Argument Without Citing Fundamental Rights,(China: China Law Publishing, 2008), (屠振宇『宪法隐私权研究－一项未例举基本权的理论论证』).
46
Xiuzhe Wang, Research on the Public Law Protection of Privacy Rights in Social Crediting Society, (China: China Civil Law
Publishing, 2017), pp.372-394, (王秀哲『信息社会个人隐私权的公法保护研究』).
42
43

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information. However, current research mainly focuses on case studies of privacy infringement, andthere is little theoretical argument on these issues.
One of the most popular topics to be researched in China relating to the establishment of personal
information protection law is the structure of the law. Much research has been conducted on a rangeof topics, such whether personal information should be protected as a private right or as part of public
interests considering the digitalisation of society. 47 Although research and the establishment of law
on privacy protection in China have progressed significantly in recent years, research on the balance
between public authority and private rights, or research on limiting the government’s authority—
whilst important—has not seen a breakthrough.
Even amongst Chinese scholars, it has been suggested that public authority should be limited sothat it can no longer violate privacy rights and that legal structures that respond to different policies
should be established quickly. Notwithstanding the need, unlike civil law, China has a different
cultural, social, and political foundation. Accordingly, the conditions to limit public authority has not
yet been established.
2. Establishment of Legislation for Privacy Protection
Before it had any concept of privacy or a mindset to protect privacy, China did not even consider
protecting privacy through legislation. Therefore, the legislation introduced for personal informationand privacy protection has only recently been established. ‘Between 1987 and 2010, China mainly
enforced laws to rehabilitate individuals and compensation profit loss with lessons from the Cultural
Revolution and persecution of individuals’. The word privacy only appeared in written civil law for
the first time in 2010 under the Tort Liability Law of the People’s Republic of China. In the General
Principles of Civil Law of the People’s Republic of China in 1987, the word privacy did not exist eventhough there was an emergence of the concept and mindset. Protection of privacy existed to an extent
as Art. 101 (Reputation Rules) could be judicially interpreted as privacy protection.
Scholars in China have categorised the stages of development of privacy protection law
separately. Zhang has categorised the establishment of a privacy mindset and development of privacy
protection law into three phases. The first phase (1987–2001) is ‘the phase to protect privacy

Xinbao Zhang, “From Privacy to Personal Information: Theories and Institutional Arrangements for Re-evaluation of Benefits”,
China Legislation Publishing Vol.3, (2015), (蒋坡《个人数据信息的法律保护》); Aiming Qi, Rescue the Personality in the
Information Society: A General Overview of the Personal Information Protection Law, (China: Peking University Publishing,2008), (齐爱民《拯救信息社会中的人格：个人信息保护法总论》).
47

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reputation’, the second phase (2001–2009) is ‘the phase of protecting privacy interest’, and the third
phase (2010–current) is ‘the phase to protect privacy adequately’. 48
Gan stated that the enforcement of the General Principles of Civil Law of the People’s Republicof China in 1987 provided alternative protection of privacy rights and enforcement of the Tort Liability
Law of the People’s Republic of China as the establishment stage for privacy protection. Gan further
stated that the Decision for the security protection of the Internet published by the Government ofChina in 2012 was where awareness about privacy protection started to increase. 49 Thus, the word
privacy appeared for the first time in the Tort Liability Law in 2010.
Therefore, this research proposes a new way of dividing the stages of development of privacy
protection legislation in China with the arguments presented in existing research. The first stage is theTransition Period for the Establishment of Privacy Protection Awareness (1987–2010) and the second
stage is the Period of Establishment of Legislation of Privacy Protection (2010–present).
The reason behind such division is that the concept of privacy did not exist in the Chinese legal
structure until 1988. After the Cultural Revolution ended, implementation of policies and enforcementof legislation were conducted to recover victims’ reputation to correct the injustices of the politicalmovement. Next, as the economy continued to grow, a new law to protect the interests of individuals
was established. However, during this time, the word ‘privacy’ did not exist in the legislation; even in
the General Principles of Civil Law of the People’s Republic of China (1987), the term ‘personality
rights’ was applied regarding the protection of privacy indirectly.
The Tort Liability Law of the People’s Republic of China in 2010 only had the definition ofprivacy rights written down but lacked details about how to protect the right. Instead, the 2010 General
Provisions of the People’s Republic of China clearly stated that the natural person must enjoy rights
such as privacy rights (Chapter 5, Rights under Civil Law, Art 110 (1)) to protect privacy under civil
law for the first time officially. The Civil Code was adopted on May 28 2020, where the personality
right was decided to be written independently (Part 4, Chapter 6). In this part, privacy rights andpersonal information were defined: ‘…natural persons have privacy rights. Any institutions or
individuals shall not infringe privacy right through reconnaissance, harassment, leakage, disclosure
etc. Privacy is the safe and sound private life, as well as private space, private activities, and private
information that one does not want to be published’ (Art. 1032). Therefore, this paper considers thatprivacy protection first became a part of written law in 2010, as legislation was slowly established.
Hong Zhang, Personality Right Theories, (China: High Education Publishing, 2015), pp.478-490,（张红『人格权各论』）.
Xinyue Gan, Limitations to Privacy Right in Big Data Era, (2019), accessed on 20th December 2021,
http://media.people.com.cn/n1/2019/0619/c427924-31167715.html （甘馨月『大数据时代隐私的边界及限度』).

48
49

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With this shift, privacy was structured as a right and gradually became something to be protectedduring the Transition Period for the Establishment of Privacy Protection Awareness. However, thefocus was mainly on recovering individual reputation, dignity, and interests during this period.
Furthermore, accepting privacy as a right in China differs completely from Western societies such as
the United States and Europe. It began as a lesson of false charges and persecution during the politicalactivities in the past rather than ensuring freedom, human rights, and dignity for individuals.
Furthermore, privacy protection during this period was only applicable to some victims of the Cultural
Revolution. Therefore, it cannot be said that it was privacy protection for the population as a whole,
but was a starting point of generalisation. Hence, the western approach had been imported into China
during this period.
The Second period, the Period of Establishment of Legislation of Privacy Protection, is whenmore fundamental privacy rights were established in Chinese society. Information technology and theInternet became popular domestically, which also caused an increase in social crimes and issues.
Research started to focus on the Western definition of privacy rights and argue theoretical andlegislative perspectives. The establishment of legislation started during this period, with the Tort Law
as a trigger.
V.

The Speciality of Privacy Protection in China
More than 130 years have passed since the Western concept of privacy rights was born in 1890

in the United States. However, the western approach to privacy protection remain novel and privacy
has only been protected since 2010. The absence of a concept of privacy rights in the traditional moral
ethics of China together with the fact that communitarianism (where individuals should not besignificantly emphasised) affected the establishment of privacy rights in China. 50
However, after 2000, as the Chinese economy continued to grow, living conditions for the
Chinese people improved and modern technologies such as the Internet and cell phones spreadthroughout society. As a result, the population started to voluntarily provide personal information to
enjoy the benefits of information technology in return. At the same time, social crimes (where person
criminals use personal information) increased. The general population of China, who are vulnerable
to such social crimes, increasingly needed protection and sought a safe and sound environment for

Mue I, “Personal Data Protection and Privacy Rights in China’s COVID-19 Measures”, The Hitotsubashi Journal of Law andInternational Studies Vol. 20 No. 1, (2021), pp541-576（伊夢瑛「中国の新型コロナウイルス感染症対策から見る個人情報保護とプライバシー権」）.
50

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private lives from the government. 51 Therefore, China’s mindset on protecting privacy and personal
information started to develop to ensure security and safety.
It is true that part of the population, inspired by a more liberal way of thinking, sought anenvironment in which they could express their thoughts freely. Moreover, some wish to be free fromthe government. However, this is not a significant choice in the case of privacy protection.
The community-based hierarchy that underpins Chinese traditional moral ethics and centralised
authority structure still significantly affects the way the population thinks. Consequently, thepopulation has little awareness about protecting privacy against the government, leading to an
imbalance between public authority and protection of privacy rights remaining an unsolved social
problem. This is particularly the case when the Government conduct mass-collection of personal
information for social and public welfare policies. The population tend to follow the request of thegovernment, being satisfied with improvements in the environment of society with little awareness of
the risks. 52
According to Solove, privacy values should be evaluated based on how they contribute tosociety. 53 Observing the shift in the concept of privacy in China, it is evident that the protection ofprivacy in China was structured under the needs of society at that time. The principal aim of theconcept was to solve social conflict in the private sector; hence, privacy protection was mainly against
society, private sector, and enterprises but not the government. In other words, the population of China
lacks the mindset of privacy protection against the Government of China. This basic difference inprivacy protection is opposite to Western society that supports protecting human rights, dignity andfreedom.
The Government of China has been actively developing modern information technologies overthe past decade and implementing policies that utilise information technologies to solve social issues.
However, the Government of China has become the largest owner of personal information of thegeneral population by creating an enormous Big Data through information technologies such as AI
and Big Data, as digitalisation progresses. Moreover, there is no doubt that these policies are forsociety and public welfare. In China, the government holds the most significant authority while being
the enforcer and monitor legislation; however, a law limiting public authority is still lacking.
Legislation that balances public welfare and private rights or regulation to protect governmental
authorities’ private rights is still very weak.
Xinyue Gan, Limitations to Privacy Right in Big Data Era, (2019), accessed on 20th December 2021,
http://media.people.com.cn/n1/2019/0619/c427924-31167715.html （甘馨月『大数据时代隐私的边界及限度』).
52
This issue will be discussed in another paper that is about Social Crediting System and Privacy.
53
Daniel J. Solove, Understanding Privacy, (the USA: Harvard university Press, 2008), p185.
51

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Measures that are implemented to fight against COVID-19 and the Social Crediting System havebeen pushed by the Government of China. These already face problems of personal information andprivacy rights. While implementing aggressive policies with traditional moral ethics and originalvalues based on the principles of public welfare and the government’s absolute authority, there arerisks of shrinking private space as government authority increases. 54
Currently, the protection of privacy has only just been developed and the establishment of its
legislation had also only just begun. As there is little understanding of the fundamental characteristics
of privacy rights, it will take more time to spread this new mindset throughout society and create
policies and legislation that will protect privacy adequately. However, an overly transparent society
and over-emphasis on public welfare could cause risks of surveillance and fake news. Therefore, it
should be appreciated that the Government of China recognises the delay in political and legislative
structure in terms of privacy protection and has started to work on this.
China has been successful in transforming management and business to the private sector byshifting the economic structure from a planned to a market economy. However, regarding the legal
protection of privacy rights, long-standing traditional ethics and ideologies still play a significant roleand hence significant innovation is needed. Therefore, just like restructuring the economy, thegovernment should abolish a certain amount of authority from managing personal information in data
governance. Otherwise, the aftermath of digitalisation will cause many troubles for Chinese society inthe future.
VI. Conclusion
This paper has analysed the establishment, change, and specialities of privacy rights in China.
China had no concept of privacy that originated in Chinese legislation due to its cultural, historical,
and social background. Furthermore, China had no environment in which to develop a social mindset
toward privacy rights. Therefore, privacy protection is a relatively new and foreign concept to China,
and by accepting Western concepts concerning privacy rights, an original privacy right that adapts tothe social environment of China is possible.
The Chinese approach to privacy rights protection differs from the American approach (seeking
freedom) and the European approach (protecting dignity). However, the reality of privacy rights
structured and developed in China is mainly to protect the privacy rights and safety of individuals
Mue I, “Personal Data Protection and Privacy Rights in China’s COVID-19 Measures”, The Hitotsubashi Journal of Law andInternational Studies Vol. 20 No. 1, (2021), pp541-576（伊夢瑛「中国の新型コロナウイルス感染症対策から見る個人情報保護とプライバシー権」）.
54

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against individuals, enterprises, and legal persons and is not to protect rights and seek privacy fromthe government. Moreover, it is not something to attain independence from the central government.
Necessities to protect personal information became more neceesary and evident as economic
development led to increased social crimes and the progression of digitalisation. This means that the
population started to learn the importance of privacy protection facing situations where their safety isthreatened if their privacy is not protected as a right.
The central Government of China has become the largest owner and consumer of personal
information domestically. While the development of laws is delayed, the Government of China has
introduced social crediting system policies and measures against COVID-19 and has connected thetwo. Through such measures and policies, the authority of the Government of China to control the
personal information of the population continues to grow. Due to this mass collection of personal
information, the private life of the people has become almost entirely transparent, which leads to anincrease in the risk of the ‘after-effect of digitalisation’, of which we must be vigilant.

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