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Personal Information Protection: Next Battlefield for China's Public Interest Litigation?

Sun, 19 Sep 2021
Categories: Insights

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Key takeaways:

  • Pursuant to China’s Personal Information Protection Law (PILL), procuratorates are empowered to file public interest litigation for personal information protection.
  • The day right after the promulgation of the PIPL, the Supreme People’s Procuratorate (SPP) issued the “Circular on Implementing the Personal Information Protection Law and Promoting the Public Interest Litigation Filed by Procuratorates for Personal Information Protection” (关于贯彻执行个人信息保护法推进个人信息保护公益诉讼检察工作的通知), expressing its commitment to addressing personal information protection through public interest litigation. 

 

The day after the promulgation of China’s first Personal Information Protection Law (PIPL), the Supreme People’s Procuratorate (SPP) vowed to engage actively in public interest litigation for personal information protection.

For more posts about China’s procuratorate, click here.

I. Procuratorates intervene in personal information protection

On 20 Aug. 2021, the Standing Committee of the National People’s Congress, China’s legislature, adopted the PIPL, which will become effective as of 1 Nov. 2021.

Article 70 of the PIPL provides for the public interest litigation for personal information protection, specifically, “if a personal information processor processes personal information in violation of this Law and infringes on the rights and interests of multiple individuals, the people’s procuratorates, consumer organizations stipulated by law and organizations recognized by the Cyberspace Administration of China may bring a lawsuit to the people’s court according to law.”

Accordingly, China’s procuratorates are empowered to file public interest litigation for personal information protection.

Therefore, on August 21, the day right after the promulgation of the PIPL, the SPP issued the “Circular on Implementing the Personal Information Protection Law and Promoting the Public Interest Litigation Filed by Procuratorates for Personal Information Protection” (“the Circular”, 关于贯彻执行个人信息保护法推进个人信息保护公益诉讼检察工作的通知).

According to the Circular, China’s procuratorates would “invest more resources in case handling and promote the implementation of public interest litigation provisions”.

Specifically, China’s procuratorates will focus on the following aspects of personal information protection and file public interest litigation when necessary:

(1) Biometric information, religious belief, special identity, medical and health care, financial account, whereabouts, and other sensitive personal information;

(2) Personal information of special groups such as children, women, persons with disabilities, the elderly, and soldiers;

(3) Personal information processed in key fields such as education, medical care, employment, pension, and consumption, as well as wide-ranging personal information involving more than 1 million people;

(4) Personal information of specific individuals formed by the connection of time, space, etc.

II. How will the procuratorate intervene in personal information protection

The way for the procuratorate to intervene in personal information protection is to file public interest litigation.

China’s procuratorates have been involved in public interest litigation since 2015, marked by the “Pilot Scheme for Procuratorates to File Public Interest Litigation” (“the Scheme”, 检察机关提起公益诉讼试点方案) promulgated by the SPP in July 2015.

According to the Scheme, the procuratorate can institute civil public interest litigation and administrative public interest litigation.

The term “civil public interest litigation” refers to that if the procuratorate finds that there are acts damaging the public interests in a specific field but there is no qualified subject for litigation or the qualified subject refuses to bring a lawsuit, then the procuratorate may institute civil public interest litigation with the court.

The term “administrative public interest litigation” refers to that if the procuratorate finds that the government illegally exercises its powers or fails to act in a specific field, damaging the public interests, but citizens, legal persons, and other social organizations are unable to bring a lawsuit due to no direct interests therein, then it shall bring administrative public interest litigation with the court.

At the time when the Scheme was promulgated, the civil public interest litigation mainly concerned environmental pollution and food/drug safety; the administrative public interest litigation mainly concerned the protection of ecological environment and resources, the protection of state-owned assets, and the transfer of state-owned land-use rights.

In August 2021, China promulgated the “Opinions on Strengthening the Legal Supervision of Procuratorates in the New Era” (“the Opinions”, 关于加强新时代检察机关法律监督工作的意见).

The Opinions require the procuratorate to expand the scope of public interest litigation, specifically including:

(1) Protection of ecological environment and resources;

(2) Food and drug safety;

(3) Protection of state-owned property;

(4) Transfer of state-owned land use rights;

(5) Protection of the rights and interests of heroes and martyrs;

(6) Protection of the rights and interests of minors;

(7) Production safety;

(8) Public health;

(9) Protection of the rights and interests of women and the disabled;

(10) Protection of personal information;

(11) Protection of cultural relics and cultural heritage.

This not only means that there will be more and more public interest litigation in these fields, but also that the procuratorate will play a bigger role in these fields.

III. Our comments

We have introduced the functions and powers of China’s procuratorates in our previous posts. See Don’t Forget the People’s Procuratorate When Resorting to China’s Judicial System.

We have also reported the public interest litigation filed by the procuratorate in terms of cultural property. See China Protects Cultural Property Through Public Interest Litigation.

Not long ago, we also discussed the public interest litigation filed by the procuratorate against products of Internet enterprises on the grounds of insufficient protection for minors. See Internet Industry: New Battlefield for China’s Public Interest Litigation?.

In our opinion, there will be more and more public interest litigation filed by the procuratorate in the future. Personal information protection will make the procuratorate one of the forces to supervise Internet enterprises, especially Internet giants.

Accordingly, we will take the public interest litigation filed by the procuratorate as one of our main topics in the future.

 

Photo by Joshua Fernandez on Unsplash

 

Contributors: Guodong Du 杜国栋 , Meng Yu 余萌

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