Protection path of personal data and privacy in China: Moving from monism to dualism in civil law and then in criminal law

Abstract

The relationship between privacy protection and personal data protection is legally and academically challenging. The PRC's civil law has evolved from the traditional monism of privacy right provision (protecting personal information) to the dualism of separating privacy protection and personal information protection. But when the private information within the privacy sphere involves personal information, the dualism protection is not absolute, but more delicate than it has been suggested.More importantly, there is little in the existing literature analysing the noteworthy divergence of the protection path of privacy and personal information in civil law and criminal law – or considering the reasonable convergence of the protection path under the civil and criminal law. China's Criminal Law has sought to protect privacy with personal information provision for more than a decade. But it is presently difficult to convert privacy content into private information for personal information protection purposes. Given the multifaceted forms of contemporary privacy invasion and comparative law trends and thoughts, we seek to build a protection framework for privacy in the information age under the criminal law – and continually updating it – so as to make use of the expression function of coherence law theory to nurture a culture of respecting individual privacy and trusting legal protection in the information technology environment. The eventual convergence of dualism protection of personal data and privacy in both civil law and criminal law corresponds to the doctrinal coherence in the information age and to policy considerations in the digital economy and society. Privacy is by default an inalienable right to protect dignity and liberty – while personal information can be a comprehensive interest, which values and balances security and purpose, in accordance with law, in a specific jurisdiction such as contemporary China. The dualism exemplifies criminal law's coordination with civil law in protection.