China’s Private Law Approach to Personal Data Protection

Abstract

In recent years, Chinese society is more aware of personal data protection. Although China has introduced and refined legal provisions to deal with issues such as data breach, illegal data collection, processing and disclosure, a number of problems still exist and arouse great controversy. Chinese laws and regulations are confronted with enormous pressure. In this context, there has been a growing interest in the study of personal data protection. A majority of Chinese scholars contend that personal data shall be protected by the private law framework, either by defining it as a personality right or a property right. As for the former definition, the tort law will be applied; while for the latter, the property law will be applied. The purpose of this article is to point out that the private law-based approach is likely to fail to protect personal data in this digital era. First, this article reviews the status quo of personal data protection in China and identifies the existing problems of the Chinese legal system. It then presents and analyzes China’s private law-based theory, including its determination of personal data, protection methods, and deficiencies. Finally, possible ways and major focuses are put forward to address the personal data protection concerns.