This post was provided by Julia Peng of Hogan Lovells’ Beijing office.
On 19 October 2010, the People’s Republic of China (“PRC”) State Administration of Industry and Commerce ("SAIC") issued the Second Revision of the PRC Consumer Protection Law (Draft for Comments) (the "Draft Consumer Law"). A significant addition to the Draft Consumer Law is a provision for the protection of consumers’ personal data.
According to Article 14 of the Draft Consumer Law, consumers enjoy the right to have their personal data protected when purchasing and using goods and services. The same article also clarifies the scope of the personal data which is protected. It includes a consumer’s name, gender, age, profession, contact details, health condition, family, properties, purchase records and other information closely related to the consumer or their families
The Draft Consumer Law includes provisions that impose penalties for the improper handling of consumers’ personal data. The penalties range from the provision of an apology to damages for both actual loss and emotional distress.
The provisions relating to the protection of consumers’ personal data in the Draft Consumer Law represents a significant step towards the setting up of a framework for personal data privacy. The most important aspect of it is that the scope of the personal data protected is now defined. Secondly, it provides various civil remedies for the mishandling of personal data.
To date, privacy is still not recognised as an independent personal right in the Constitution or the General Principles of Civil Law. A data protection legislation exists in draft in the form of "The Personal Information Protection Law" which was submitted to the State Council in 2005, but has not progressed further. Piecemeal provisions relating to personal data exist in various pieces of legislation, the most recent addition being the 2009 new article in the Criminal Law, which prohibits the unauthorised sale or disclosure of personal data. However, the new article only covers serious breaches by government officials, or staff members of financial, telecommunications, education and health institutions. It is therefore hoped that the Draft Consumer Law will be an effective tool that catches a wider range of data privacy breaches.
Recent reports indicate that the SAIC is currently reviewing and discussing the Draft Consumer Law. After this review is completed, the Draft Consumer Law will need to be reviewed by the State Council and the National Congress before it can become law.
The Draft Consumer Law (in Chinese) is available at: http://www.315.gov.cn/AttachFiles/20091016100151.doc