Post on 11-Jun-2015
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
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
taoqianchina@gmail.com
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)
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Privacy Protection in China
Tort Liability Law (July 1,2010)
privacy is written clearly in the article 2 as one of civil rights
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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”.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Zhang Xinlin v. Tianya.cn
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Zhang Xinlin v. Tianya.cn
The court avoided discussing this question given that there is no clear definition under the present laws.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Zhang Xinlin v. Tianya.cn
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Zhang Xinlin v. Tianya.cn
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Wang Fei v.Tianya.cn
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)
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Wang Fei v.Tianya.cn
Main disputes: Monitor and take down in time Terms of use as a way to immunity
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Wang Fei v.Tianya.cn
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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)
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Question remained: timely.
35 hours V. 66 days
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
New question: terms of use
If the Terms of use/ user agreement can release the website operators of liability?
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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)
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore 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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Yin Hong v. Baidu
Main disputes:
Valid notice If not valid, should Baidu have known of
illegal contents Take down effciently
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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.
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Yin Hong v. Baidu
take-down standard hasn’t been mentioned.
Ultimately, Baidu was held to be liable on June 30, 2010
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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?
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Problems: “Notice” requirement
If regardless of the validity of the complaints, it would result in intentional or unintentional abuses of reporting and wrong accusations
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Changes learned From the case:
Passive monitor moderate monitor : Implied consciousness (hot news)
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Put three cases together: Summary of questions:
Monitor standard Knowleage standard Notice standard Take-down standard Self-regulation standard
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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?
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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?
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
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?
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Qian Tao, Scuola Superiore Sant'Anna,Italy taoqianchina@gmail.com
Thank you!
Qian Tao,
Sant'Anna School of Advanced Studies,Pisa,Italy
China University of Political Science and Law, Beijing ,China
taoqianchina@gmail.com