privacy protection in cyberspace in china------ -----intermediary...

Only goldfishes can live without privacy?

Qian Tao, Scuola Superiore Sant'Anna,Italy

taoqianchina@gmail.com

PRIVACY PROTECTION IN CYBERSPACE IN CHINA

-----Intermediary Liability of Website Operators in Privacy Cases

Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com

Privacy in Cyberspace

Internet industries disclose users’ privacy

Internet users disclose others’ privacy

users: direct liability

website operators: indirect liability

Part 1 Privacy rules in China Part 2 Case studies Part 3 Freedom of expression and public concern

Qian Tao, Scuola Superiore Sant'Anna,Italy

Privacy Protection in China

Constitutional law

privacy doesn’t be clearly mentioned.

Article 38. The personal dignity of citizens of China is inviolable.

(considered as the constitutional basis)

Privacy Protection in China In General Principles of the Civil Law (GPCL),1987,

the section of rights of personality(reputation, name, image, etc): privacy isn’t included.

Three Interpretations of the Supreme People`s Court ,1988 1993,2001

anyone discloses the privacy of others……should be determined as infringing upon right to reputation

Privacy Protection in China

Tort Liability Law (July 1,2010)

privacy is written clearly in the article 2 as one of civil rights

Chinese rules for cyber torts Tort liability Law 2010 (Article 36) The Administrative Provisions on Internet

Audiovisual Program Services 2007 The Administrative regulation on Internet

Information Service 2000 The Administrative Provisions on Internet

Electronic Messaging Services 2000

Summary of these rules: website operator’s duties

Warn/remind:

properly inform its users about the obligations which they are subjected to by law and about the risks implied by non-compliance

Monitor:

Shall discover the apparently illegal contents Take down timely (in time) :

take necessary measures timely when knowing its user violating others’ privacy by its service.

Liability

Know but have not taken down timely

(Knowledge based liability)

Knowledge: Have Known after notice of the infringement Should know the apparently illegal contents

Case studies

Internet forums(Message Boards):

Zhang Xinlin v. Tianya.cn 2006

Wang Fei v. Tianya.cn 2008

Search engine： Yin Hong v. Baidu.com 2010

Zhang Xinlin v. Tianya.cn Tianya.cn is the most popular forum in China with

more than 30 million registered members. a registered user named “toochache girl” who was

quite active and famous on Tianya was doubted to be a man by another user named“one hundred flavors”.

After a wrong investigation, “toochache girl” mistook Zhang for “one hundred flavors”.

Zhang Xinlin v. Tianya.cn

For revenge, “toochache girl” posted Zhang’s landline number, mobilephone number,home adress, family member information on Tianya.cn.

She also posted that “Zhang had previously been detained and is now a fugitive from the law” (it is not true)

Tianya took down the contents 35 hours later after his complaint.

Zhang sued that：Tianya’s slow response (in monitor and take down)

resulted in :

his privacy being exposed to the public 72 hours in total.

Reputation being damaged

Zhang Xinlin v. Tianya.cnTianya argued that:

(1) no editorial responsibility: not able to give pre-publication control.

(2) The filtering technology not able to filter contents including personal information automatically

(3) taken down the contents as soon as they could after complaints were received.

Zhang Xinlin v. Tianya.cnMain dispute: “timely”

37 hours 35 hours

monitor take down

User Posting victim complaint (notice) website takedown

The court avoided discussing this question given that there is no clear definition under the present laws.

Zhang Xinlin v. Tianya.cnThe court held that:

It is true that Electronic Messaging Service providers are not able to edit and control the contents in advance, but they can monitor after being posted.

This monitor should be active and comprehensive, rather than passive.

If the service provider’s responsibility to take down unlawful information is based on victim’s notice,

it is unfair to victim because his right to complain is treated as an obligation in order to protect his legitimate right.

Ultimately, the court held that Tianya failed to comply with the monitoring duty sufficiently, waited for victim’s complaint passively and indulged unlawful information disseminating on its system, Therefore, Tianya is liable for Zhang’s damages.

Question： If we should impose monitoring liability?

Such an active moonitoring mode may cause problems:

Place web operators in a difficult position of evaluating complaints and consequently removing all contents in question in order to aviod any possible liability.

Chilling effect to freedom of expression

Two years later.....

In the case: Wang Fei v.Tianya.cn,

similiar cases, different outcomes.

Wang Fei v.Tianya.cn A post on Tianya.cn January 10, 2008 stated

the whole process of a recent hot news: a wife killed herself because of her hansband’s betray. Wangfei is this hansband.

Numbers of persons have followed this post, and added comments.

Wang Fei v.Tianya.cn

Among these comments, Wangfei’s personal information (such as phone number, email adress, home adress, family member etc.) was repeatedly exposed. There were also many insulting words to blame him.

The contents were taken down March 15, 2008

Wangfei sued Tianya for privacy and reputation damages.

Tianya argued:

terms of use ,warning when users post

Taken down before the lawsuit (3 days before)

Main disputes: Monitor and take down in time Terms of use as a way to immunity

The Court held: fulfilled the requirement of law by setting up

monitor and filter measures and publishing terms of use.

had the monitor duty,

but impossible to monitor every post based on the existing and common web managing mode and technological methods.

Wang Fei v.Tianya.cnTherefore:

Tianya shall take down the unlawful posts in question when discovering them itself or after victim’s complaint

Tianya is not liable since the posts in question were taken down before this lawsuit. (decision on December 18th, 2008)

Question remained: timely.

35 hours V. 66 days

New question： terms of use

If the Terms of use/ user agreement can release the website operators of liability?

Changes learned From the case:

Active monitor passive monitor

Problems: Passive monitoring mode may cause

fringement increasingly. In order to get more visits, some website

operators post unlawful contents in the name of users.

Two years later, in 2010

Yin Hong v. Baidu.com

Yin is a graduate from Shanghai Maritime University

Baidu is the leading search engine service provider in China (as Google in US)

Yin Hong v. Baidu Yin’s exboyfriend posted Yin’s nude photos on Internet

for revenge on May 8, 2009.

Yin made a declaration on Shi Dai Newspaper asking all websites to take measures to remove them as well as related news on 13th May 2009.

By searching “Yin Hong” , “Maritime scandal” or “Maritime Girl” as keywords on Baidu.com, thousands of links, which included photos and personal information of Yin ,could be found out.

Yin Hong v. Baidu

Yin sued : Baidu’s service promoted the dissemination of photos and increased her damage.

Qian Tao, Scuola Supriore Sant'Anna,Italy taoqianchina@gmail.com

Yin Hong v. Baidu

Baidu argued

(1) the search engine can’t identify contents automatically; Baidu kept monitoring illegal contents and removed the links even before Yin’s cliam

(2) the declaration on a local newspaper didn’t constitute a valid notice

(3) new posts continually, new URLs. it was impossible to screen all links even manually.

Yin Hong v. Baidu

Main disputes:

Valid notice If not valid, should Baidu have known of

illegal contents Take down effciently

Yin Hong v. Baidu

About the notice:

The court held: who made the declaration on Newspaper is

unclear because it was ended with “Ms. YH” instead of Yin’s full name. So didn’t constitute a valid notice

Yin Hong v. Baidu

About the knowledge

The court held: Because: After May 8, 2009, it became the

hottest topic Baidu received an anonymous complaint on May

15, 2009,

------Therefore, Baidu should have had knowledge of the infringement no later than May 15.

Yin Hong v. Baidu

take-down standard hasn’t been mentioned.

Ultimately, Baidu was held to be liable on June 30, 2010

Question：“Notice” requirement---- lack of legal guidance

What are the formal requirements this notice must comply with？

any form? Who can effectively bring the notice ？ anyone?

Problems: “Notice” requirement

If regardless of the validity of the complaints, it would result in intentional or unintentional abuses of reporting and wrong accusations

Changes learned From the case:

Passive monitor moderate monitor : Implied consciousness (hot news)

Put three cases together: Summary of questions:

Monitor standard Knowleage standard Notice standard Take-down standard Self-regulation standard

Put three cases together:Summary of changes:

2006-----2008------2010

Strict----loose-----moderate

Background:

2006 cyber targeting and cyber bullying began. control the information on internet .

2008 promote internet market, especially the social networking websites.

2010 balance, control the increasing infringements

In this process, freedom of expression has never been mentioned.

Freedom of expression

Constitutional Law in ChinaArticle 35. Citizens of the People's Republic of China enjoy freedom of expression, and ……

Legal status: Freedom of expression> privacy?

Dabate on “public concern” Public figures have a lesser expectation of

privacy

But when someone who is not public figure but is nonetheless in postion of influence and is involved in a public debate or general concern?

Dabate on “public concern”

If the contents in question is truthful and newsworthy information about a matter of public significance?

hypothesis:

If these three cases happened in EU or US or any other countries where you are from,

How will be the courts’ decision?

Thank you!

Qian Tao,

Sant'Anna School of Advanced Studies,Pisa,Italy

China University of Political Science and Law, Beijing ,China

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