Happy Tort Liability Law Day
To be perfectly honest, when I woke up this morning, the first thing on my mind was not the Tort Liability Law, which comes into effect today. My first thought was why my cat had sunk his claws into my right arm and was meowing loudly in my ear (answer: hungry).
With that problem solved, the day progressed pretty much as usual, with nary a reference to the new tort law, until around noon when CCTV called requesting an interview on what they referred to as the “online manhunt” phenomenon. The interview is scheduled for around 10:30 tonight, and I haven’t exactly pinned down the subject matter yet.
The reference to “online manhunt” undoubtedly refers to the “human flesh search engine” issue (????), which sprang to prominence a couple of years ago after a woman leaped to her death after learning about her husband’s infidelity. Netizens outraged by the incident tracked the husband down and posted personal details online. The husband later sued the web platform used and was awarded damages from a Beijing court.
Since that time, some of the most celebrated cases of human flesh searches have involved government officials. One notable incident concerned an official with responsibilities in the property sector. After he said that home sales made below a certain cost price would not be permitted, annoyed Netizens went after him, ultimately finding photos of him smoking expensive cigarettes, wearing an expensive watch, and riding around in an expensive car. He was later fired from his government job and ultimately landed in jail on corruption charges.
Quite a fun topic. Why is this timely? Well, this is where the new tort law comes in. Up to now, a lot of issues involving privacy and reputation have been unclear under Chinese law, and we’ve had to rely on provisions in the Constitution and Civil Law. Specific issues relating to data privacy have been even more difficult as only a patchwork of laws, including laws on consumer rights, product quality, and computer networks have tangentially addressed these questions.
The new tort law, to a certain extent, codifies a lot of these provisions and institutes the right to privacy as a civil right in China. Kind of a big deal, although it will of course take a great deal of time to figure out what these applicable provisions actually mean in the real world of actual cases.
I assume that the fundamental question I will get from CCTV tonight will be whether the new law will have any effect on human flesh searches. The short answer is maybe but, good lawyer that I am, my answer of course has to be “it depends.”
ISPs and site operators have already been held liable in certain instances, so they already need to be on the lookout for these incidents and take down private information after they have been notified of the relevant posts. A lot of my questions relate to “users,” which are potentially liable under the new tort law as well. If a user of an electronic network infringes upon another’s right of privacy or reputation, that user can be liable in tort.
We’ll see where the discussion leads me tonight. It better not lead too far, though. It’s only a five-minute interview after all.
Anyway, more details later tonight on this topic. I’ll include a few comments on some other parts of the tort law that might be of interest.
Good article, Stan.
I’m curious whether the new privacy law differentiates between private citizens and those in the public sphere, such as politicians. As you know, the U.S. law does note that privacy protections are fewer for the latter as there is a public interest involved. In your examples above, I would say there may be more of an argument condoning the public’s human flesh engine search with regard to the corrupt official, as this reflects a legitimate public interest.
Good question. Yeah, you’re going down the road of “expectation of privacy,” which is a U.S. law way to look at all this. I have a tendency to think along those lines myself. However, the law does not make any such differentiation, and I haven’t read anything from past cases about this issue either. Eventually, though, the government/courts will have to take this into account when formulating just what is private and what is public, and how that might differ depending on the “target.” In general, though, I don’t think a defendant over here will ever be cut any slack with a “legitimate public interest” defense. That just doesn’t work here in practice.