Beijing must ensure people's right to privacy

Zhou Zunyou says the trial by media of a juvenile suspect underscores the lack of progress

PUBLISHED : Monday, 01 April, 2013, 12:00am
UPDATED : Monday, 01 April, 2013, 3:00am

The case of Li Guanfeng, the 17-year-old son of the prominent People's Liberation Army singing artist Li Shuangjiang, is hitting the headlines again. A defence lawyer publicised a sternly worded statement last month, appealing to the public to respect the rights of his client, who has been detained, with four others, on suspicion of gang rape.

The statement reaffirmed the junior Li's status as a juvenile, condemned the ongoing "media trial" and dismissed the rumours circulating about the case. The lawyer urged media outlets and internet users to stop creating false information and airing groundless views, and claimed to reserve the right to sue those who infringe the suspect's legitimate rights.

In particular, the lawyer called on the public to comply with the Law on the Protection of Juveniles. By invoking this law, he presumably aims to address the infringements on Li's right to privacy. Under this law, the suspect's personal details, including his name, address, photos, videos or any other information that may reveal his identity, should not be disclosed to the public.

It is a positive signal that the Li family is ready to resort to the law to fight against the smear campaign and unauthorised disclosure of personal information. But it remains doubtful whether anybody will actually be sued. The damage to the minor's reputation has been done, and cannot be undone. If a lawsuit is filed, further media coverage and online commentaries will follow and add to the damage. Even if a lawsuit were successful, it would be questionable whether the verdict could ultimately solve the problem.

Nevertheless, privacy is a fundamental human right, enshrined in a number of international human rights instruments. It is also a crucial element of human dignity and other individual freedoms. The right to privacy enables a person to be free from outside intrusion both from state agencies and other citizens.

In mainland China, despite extensive academic discussions, the right to privacy has yet to be recognised as a constitutional right. The fact is that the protection of privacy relies on other constitutional rights such as the right to reputation, the inviolability of residence, and the privacy of correspondence. The Chinese government issued its first and second national human rights action plans in 2009 and 2012, but both plans made no explicit mention of privacy as a human right.

Currently, China does not have a statutory definition of "privacy", "personal data" or "personal information", let alone a uniform national law that specifically addresses the protection of this right. While a draft law on personal data protection was reportedly submitted several years ago, it was unclear when the proposed law would become a reality.

In the absence of such a law, China is adopting a piecemeal approach. In recent years, privacy-related matters have been regulated in the form of parliamentary laws, administrative regulations and judicial interpretations. As a consequence, legal provisions in this regard remain scattered, unco-ordinated and incoherent.

Whereas the government welcomes the economic benefits of new information technology, it keeps a close eye on the free flow of information with its potential of destroying government control over society. Facing robust growth of the internet industry and outbursts of critical opinions online, these laws grant state agencies generous rights to access, monitor, censure and eliminate a wide range of information. Yet, few of these laws contain meaningful provisions limiting government interference in the collection, storage, use and transfer of personal data.

The Li Guanfeng case highlights the legal reality of mainland China: while state authorities are preoccupied with controlling the public, they tend to overlook their obligations to protect the people. At this moment, their main concern should not be to adopt more laws granting greater censorship and surveillance, but to improve how the current legal system can protect privacy.

Of course, with regard to intrusions by private parties, freedom of speech has its limits. The protection of the right to privacy matters a great deal to any suspect, but no less to everyone else. In today's changing world, personal data is highly vulnerable to misuse and we are all potential victims of malicious rumours and libel. In respecting Li's right to privacy, we defend our own.

Since 1999, the concept of "rule of law" has been written into the Chinese constitution. A precondition of rule of law is a fair and transparent legal framework. But this is not enough. It is even more important to make sure that laws are strictly enforced, especially when they are challenged.

The rule of law does not promise a favourable outcome for every individual, but it guarantees that laws are applied equally to all citizens.

Zhou Zunyou is a Chinese researcher and head of the China section at Germany's Max Planck Institute for Foreign and International Criminal Law