Don’t Ask, Don’t Sell: The Criminalization of Business Information-Gathering in China and the Case of Peter Humphrey

Abstract

Author(s): Clarke, Donald | Abstract: The case of Peter Humphrey and Yu Yingzeng, convicted in China on August 2014 on charges of unlawful acquisition of personal information of citizens (PIC), raises important issues about Chinese law. A narrow but important issue is how Chinese law draws the line between lawful and unlawful acquisition of information, a practice routinely carried out by businesses and individuals. This article examines the trial transcript and judgment in the Humphrey/Yu case and finds that it sheds regrettably little light on what remains a murky question. The judgment ignored the issue entirely, finding in effect that the collection of PIC was per se unlawful.A broader issue is whether the Chinese legal system can be counted on to operate in a fair and impartial manner. This article presents the results of a study of all reported cases in Shanghai (ninety-two cases) involving the same provision of the Criminal Law that was the basis of the Humphrey/Yu conviction. It finds that the Humphrey/Yu sentences are outliers relative to other cases with comparable facts. In particular, Humphrey’s sentence of thirty months’ imprisonment was by far the heaviest sentence ever meted out by Shanghai courts on this charge, even though the circumstances seem conspicuously less serious than those of many other cases where lesser sentences were imposed, thus lending support to the theory of selective prosecution.