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Judicial Protection of Internet Privacy: Subject of Tort, Standard and Forms of Liability
February 07,2018   By:CSHRS
Judicial Protection of Internet Privacy: Subject of Tort, Standard and Forms of Liability 
 
HU Changming
 
Abstract: As one of the basic human rights, and one confirmed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the right to privacy has been written into China’s General Principles of Civil Law and Tort Law. However, in judicial practice, there has been no unified standard in defining a tort of privacy, especially a tort of internet privacy. With the increasing popularity of the internet, torts of internet privacy are becoming more and more rampant and severe. Focusing on “internet hunts”, a common tort of internet privacy, this paper examines how to affirm a tortious act of internet privacy, as well as forms of liability. It also expounds the practical judicial issues such as the object of prosecution trials. 
 
Keywords: right of privacy, tort of internet privacy, Internet Mass Hunting, judicial practice 
 
Article 110 of the General Principles of Civil Law of People’s Republic of China, issued on March 15, 2017, stipulates that “a natural person owns the right of life, right of body, right to health, right of personal name, right to image, right of reputation, right of honour, right of privacy and right of marital autonomy.” This article makes up for the long-time deficiency in specifying “right of privacy” in the General Principles of Civil Law. However, in practice, judicial protection in the case of a tort of privacy is not clear. Especially with the coming of the Web 3.0 era, the dissemination of information is faster and wider, and collecting evidence of a privacy tort becomes more difficult and torts of privacy take more forms. Consequently, protection of internet privacy has become more challenging. In judicial practice, there are continuous debates over such sensitive issues as which cases may be privacy torts, how to determine the subject of an internet privacy tort and the forms of liability.
 
I. Tort of Internet Privacy and Its Standard
 
The right to privacy is a personal right owned by an individual with regard to the privacy of an individual’s personal information, private actions and private domain that it is not in the public’s interest to know.  It is also one of the basic human rights specified in the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. 
 
Internet privacy is an extension of personal privacy into the realm of cyberspace. On the one hand, people’s private cyber lives and personal online information are protected by law from being illegally infringed upon, learned of, collected, copied, publicized or used. On the other hand, it also refers to the prohibition of disclosing sensitive personal information on the internet including facts, pictures or defamatory remarks.  A person commits a tort when he or she performs an act that is recognized by the law as wrongful toward others and for which the remedy is a private legal action. Some torts are thus crimes, and those committing such torts can be prosecuted for committing a crime. However, other torts are not crimes; instead they are a wrong or injury, other than a contract violation, for which the victim can seek redress. Thus an internet privacy tort is a violation of a person’s right to privacy in cyberspace, and the victim can seek compensation for damages. 
 
The right to internet privacy is an increasingly important right. As modern information and internet technology have dramatically expanded the domain for a person’s privacy, leading to new problems with regard violations of privacy. But compared with the traditional right of privacy, the subject of an internet privacy tort, the form of the tort, the damages caused, and solutions are all different. An internet privacy tort involves the use of the internet to illegally disclose personal information and invade the private life of an individual or individuals, making it harder to address than the privacy tort in the real world.  
 
From a legal perspective, the General Principles of Civil Law of the People’s Republic of China clearly states that an individual has the “right of privacy”, while the Tort Law of the People’s Republic of China defines the right to one’s image as a civil right and interest, stipulating that any infringement of civil rights and interests has tort liability. However, neither of the laws defines the right to privacy and what constitutes a privacy tort. However, “Answers to Several Questions Concerning the Trial of Reputation Rights Cases” - a judicial explanation issued by the Supreme People’s Court - stipulates that “unauthorized publication of another’s personal information or the disclosing of other’s privacy in written or oral form without the victim’s consent that results in the damage to the reputation of the victim shall be dealt with as a tort of the reputation rights of others”. And the “Interpretation of Several Issues Concerning the Determination of the Liability of Compensation for Mental Damages in Civil Torts” stipulates that in cases where a person’s privacy or personal interests are infringed upon without being in the public’s interests, if the victim sues for compensation for mental damages on the grounds of a tort of privacy, the court should accept the case in accordance with the law. 
 
In other words, although our civil law has confirmed the right to protection of privacy, it does not specify what constitutes a privacy tort, nor does it expound what is “privacy information” or “privacy”, which has created difficulties for the courts when dealing with tort of privacy cases. Meanwhile, unlike traditional privacy torts, internet privacy torts have their own characteristics and there are differences and challenges in determining that a tort of internet privacy has occurred.
 
A. Standard of privacy
 
The Modern Chinese Dictionary defines privacy as “personal affairs that one does not want to tell others or make public”. The Chinese meaning of privacy offers us a simple understanding which has both subjective and objective implications: From a subjective perspective, privacy implies someone’s unwillingness to make something known to the public or to tell others. From an objective perspective, privacy must be “personal” affairs that are unrelated to the public interests or interests of others. In addition, privacy should have both subjective and objective elements simultaneously. It is important to note that the unwillingness to make public only refers to unwillingness to open to the public randomly,  and a person will voluntarily make known to others personal information such as their name, telephone number, home address, height and weight, and information of a more intimate nature, which, however, does not prevent this information from being the object of privacy protection. 
 
There are four types of privacy torts that are generally recognized: those concerning the public disclosure of personal information about an individual that the public has no right or need to know; those involving intrusion upon the privacy of a person; those involving the publication of false and offensive representations of people; and those involving the appropriation of someone’s name or image without their approval.
 
But as privacy has a certain individuality and arbitrariness it is difficult to define judicially. Therefore, the key to determining whether a person’s privacy has been violated is whether it is in fact a “personal affair”, of which there are three basic forms: private affairs, personal information and the personal domain. Private affairs are dynamic privacy such as daily life, social interaction and communication, personal information refers to personal data including religious and political beliefs, while a personal domain refers to such privacy as that relating to body and ownership of personal things such as private property, luggage, and letters.  These set a definite standard for personal affairs and thus privacy. 
 
B. Tort of internet privacy
 
Not all tortious acts violating someone’s right to privacy are applicable to internet privacy. An internet privacy tort can be classified into two major types: a non-action tort and an action tort.
 
1. Non-action torts
 
Victims of privacy torts usually seek redress for an action, but in some circumstances, privacy torts may concern a failure to act. “The so-called legal duty of action not only refers to the duty specified in law, but also refers to the duty conceived from the perspective of the whole legal purpose and spirit in accordance with the public order and good social customs. Generally speaking, it refers to the following five duties: (1) the duties specified by law; (2) the duty to act based on a service relationship; (3) the duty to act based on a contract relationship; (4) the duty to act to prevent harm resulting from prior actions; (5) the duty to act to prevent harming public order and good social customs when opportunities for preventing such danger are available.” 
 
An internet privacy tort relating to the failure to act is generally applied to the internet service provider who has the duty of examining, checking and supervising  the privacy of personal information but which has failed in that duty, whether unintentionally or intentionally, resulting in the spread, loss and dissemination of personal information.
 
2. Action tort
 
Internet privacy torts concerning actions that constitute an invasion of privacy mainly refer to the following circumstances:
 
First, prying into or investigating someone’s personal data and information. Having control over the facts of one’s private life is a key part of privacy. For example, collecting someone’s information or data that is not in the interests of the public without that person's consent constitutes an invasion of privacy.
 
Second, publicizing and disseminating another’s private affairs. Concealing personal affairs is one of the most important privacy rights. People have the right to conceal their private lives from public scrutiny unless it is in the public’s interests for the information to be known. In the process of “internet hunts”, many internet users publicize the victim’s personal data, information and personal affairs which is actually a violation of a person’s right to privacy.
 
Third, inappropriate collection of personal data. One must obtain the consent of    the person concerned when collecting, saving and using someone’s personal information. Should the person be incapacitated, the consent of the next of kin must be obtained. Most initiators of “internet hunts” did not obtain the of those being “hunted” to collect and reveal he personal data of their quarry, therefore these acts constitute an internet privacy tort. Besides, some websites and individuals process, organize and draw “real” and “valid” information from massive information, which is also a tort of internet privacy. 
 
Fourth, distorted and false reports. During the “internet hunts”, false facts may be publicized about the person being “hunted” in this way. Even though such false facts may not involve false or offensive representations of people, publication of these falsehoods portrays the person in a bad light, even though the facts themselves may not be defamatory The false claims present the a false image of the “hunted” person to the public, which distorts or damages the victim’s image and reputation  and thus infringes on his or her right to internet privacy.
 
C. Characteristics of intrusions into internet privacy
 
1. Torts of internet privacy easy to do
 
The need to protect online privacy mainly comes from the vulnerability the virtual world creates in people’s personal space. Technology has created a distinct change in what individuals are willing to reveal not only to intimates, but also acquaintances and even strangers. But what is revealed, which may be of an intimate or embarrassing nature, does not necessarily create a case for publication and use after the fact. First, at present in China, the internet, personal computers and mobile phones make it easy for people to “publish” content relating to their personal affairs and for others to disseminate such material without the consent of the owner. Second, the internet has greatly decreased people’s control of their personal information as much is collected by other parties, leading to information asymmetry. Third, updated technology including some hi-tech software and “Trojans” make it easy for people to use networks to obtain personal information and the private data of others stored in their personal computers. Fourth, in the era of we-media, individual publication of information is no longer required to be examined and approved as fit for publication. In addition, to pursue click rate and commercial profits, some we-media and websites fail to carefully examine the information sent to them.  
 
2. Serious consequences of tort of internet privacy
 
With the popularity of personal computers and smart phones, the internet has become one of the most important channels for quick and widespread dissemination of information. Invasions of privacy by means of the internet can result in huge psychological and material damage to the victim. Moreover, the convenience of internet, its openness and the speed with which information can be disseminated via the internet may cause severe or even irreparable damage to the victim’s privacy.
 
In addition, the interactions among those members of internet communities or forums, even when they are in a simple form of a “Q&A” in internet mass hunting, are greatly different from interactions between people in the real world. Although the number of netizens answering a question may be just one, the information provided in the answer may become known to numerous people, and the number of netizens joining the discussion may greatly increase. As a result, a “clustering” of public opinions may easily be formed, and once the intrusion into a person's privacy occurs in cyberspace, its influence tends to be huge.  
 
3. Numerous subjects of tort and great difficulty in judicial protection 
 
The virtual nature and openness of the internet have led to numerous people being the victims of an internet privacy tort as people have great difficulty in protecting their privacy in cyberspace. For example, in the process of “internet hunting”, the initiator, the respondent, the information organizer and transmitter as well as the internet service provider may all be involved in a tort. At the same time, once an “internet hunt” is initiated, possibly thousands of netizens will upload the victim's private information, and this information once uploaded will be reposted immediately. Besides, “[w]ith the help of the internet and computer technology, the collection of personal information and data may be done with the victim kept in the dark and therefore ignorant of what is happening, thus preventing the victim opposing access to and collection of his personal information and data”.  As a result, neither the victim nor the internet service provider will supervise and delete tortious information at once. Thus the judicial protection of internet privacy is extremely difficult.
 
4. Difficulties in collecting evidence of tortious act
 
The victim of the invasion of privacy will be further faced with the difficulty of collecting evidence. In general, in civil cases, tort cases follow the principle that the burden of proof lies upon the party who claims. But an internet privacy tort is conducted online, so the victim may not be aware of what is happening, and the tortious information may be deleted in an instant by the infringer of the victim’s privacy after it has already been widely spread via social media and has already produced the intended consequences. Therefore, when the victim learns about a tortious act, the website may have already been deleted or changed. In this case, the victim may face difficulties collecting evidence. Even though the victim is able to know the tortious act has taken place, it is still difficult to collect the evidence without the help of the professional technology company. As for the identity of the initial discloser of private information, it is even harder to know the real identity of the person concerned as most netizens use aliases for their social media accounts or surf the net anonymously.
 
5. Various types of tortious acts 
 
A tort of internet privacy usually involves torts of other rights, making it hard to separate one from another. For example, in the well-known case of Wang Fei suing the websites “Daqi”, “Tianya”, “Migrating birds flying north” and Zhang Leyi,  when netizens published the photos of Wang Fei and his lover on the internet, they infringed on the right of Wang and his lover to protect their images and reputations and numerous netizens may have also infringed their right of reputation when they posted abusive comments. Furthermore, these tortious acts were combined with the unauthorized disclosure of Wang’s personal information and privacy, so it can be seen that one tortious act may involve infringements of a number of civil rights.
 
All these characteristics of an internet privacy tort indicate that compared with other privacy torts in other circumstances, it is more difficult to protect people from internet privacy torts and such torts have more serious consequences. 
 
II. Subject of Tort of Internet Privacy and Forms of Liability 
 
Generally speaking, when a netizen uploads another person’s personal information or personal material the service provider fails to carry out its duty of supervising and deleting private information in time, all these acts may involve a tort of internet privacy. 
 
A. Collector of private data
 
Internet hunting is often initiated by a questioner, but whether this questioner infringes internet privacy when asking for the information needs detailed analysis. To confirm the identity of the “hunted” person, some questioners tend to publish some basic information of the person being pursued, which may lead to the release of private information. For example, “[t]he missing woman is named Zhao Shujing, also Zhao Ningjing. Her father is Zhao Yuliang, her mother is Zhang Fengling, and her younger brother is Zhao Xiaoxu, also named Zhao Hu, whose ID number is 220283198603142331. Her former home address was Team 5, Yongxing Village, Ping’an Town, Shulan City, Jilin Province... Please help me find her and great reward will be paid for valuable information”. Some questioners often publicize the “misdeeds” or “evil doing” of the hunted person in order to arouse the interest of other netizens in conducting an internet hunt. For example, in a post entitled “Top notch doctor Chen Xiaoping practiced medicine illegally, causing patient to death and ran away!”, this initiator of the mass hunting described in detail the process of Doctor Chen Xiaoping treating patients together with such comments as “a doctor with no medical ethics” and “Chen Xiaoping, the evil and immoral doctor”. These remarks may not be related to privacy, but may infringe on the rights of the victim such as his right of reputation. However, if it is a common post of internet person search, and there is no tort of private information or personality rights, then such an act itself does not constitute tort. For example, the following post is not a tort: “Notice for missing person: Min Yanhong, a 28-year-old girl, quite gentle. I do not want to tell the exact reason. To get in touch with her again is my lifelong hope.”  
 
B. Publisher and transmitter of private information
 
Once the information publisher publicizes the private information of a third party via the internet, that will be considered as the publication of other’s personal information, which is definitely a privacy tort. Moreover, when someone’s personal information is disclosed via the internet, the may be widely spread. The transmitters of private information further expand the dissemination of the victim’s information, aggravating the victim’s suffering, thus the transmitters are not only the “accomplices” of the initial publisher of the private information, they also infringe upon the victim’s privacy themselves. 
 
The issue of intermediate information transmitters in “internet hunts” needs attention. For example, in the case of “cat abuse incident”, those who figured out such information as the publisher of the photograph was in Ningbo and the background of the photograph was in a small county of Heilongjiang Province did not infringe on internet privacy, because although this information contributed to the final finding of the protagonist of the “cat abuse incident”, these information itself did not infringe other’ s right to control his personal information unrelated to the public interest.
 
C. Internet service provider
 
An internet service (ISP) refers to the intermediary service provider who offers   customers an information transmitting channel, communication space, technological support, certification service and payment service. An ISP does not actively send messages, nor does it select or change the content of transmitted messages or the receiver of the messages. When they provide their services to the customers, their system or network will store, automatically copy, save and transmit messages sent by users. Once a user makes use of their service and network to send tortious or illegal information resulting in infringing other’s legal rights or damaging public interests, whether ISP should hold liability for such tort involves its position and role in the process of tortious act.
 
Considering the position and practical role it plays in the process of information exchange, an ISP is not capable of judging whether an internet post constitutes a tort or not. So an appropriate principle of liability restriction or exemption should be applied to the ISP, that is, in general (in case of its being free from fault), ISP does not hold liability such as compensation or apology, and the only responsibility it should take is the stopping of the tort when it becomes aware of it. This principle is applied in order not to hamper the development of the internet, which will further damage the interests of its users.
 
An ISP should carry out its duty to delete tortious information, especially after being notified by the victim, that is to say, when ISP learns about or is informed of a tortious act or other illegal act, it should take immediate measures to remove the tortious information or block the information and prevent the information from being viewed in order to stop the tortious act. An ISP must take technical measures to delete or block insulting or slanderous and obscene or violent content. If an ISP fails to sufficiently fulfil its duty of supervision or fails to detect the insulting and slanderous content or other illegal information within a certain legal time limit, it has to assume corresponding liability and compensation for the damage after it is notified by the victim.
 
III. Difficult Judicial Issues Concerning Tort of Internet Privacy
 
A. Object of prosecution in the case of tort of internet privacy
 
Theoretically speaking, any acts that infringe on people’s right to privacy should be punished and the victims can sue those infringing on their tights. But while it is not difficult to confirm who is doing the infringing in general cases of tort, confirming who is the infringer of someone’s right to privacy becomes the first problem to be solved with regard to an internet privacy tort. First of all, due to the openness of the internet, in the case of an internet privacy tort, the tort is committed not only by the collector of private information, but also the publisher of the information, the retransmitters, and the internet service provider. Especially in the process of “internet  hunts” the publishers of private information and the retransmitters are great in number and come from various places, and more importantly, most of them spread the information on the internet using aliases, “net names” or “anonymously”, thus it can be rather difficult to find out their real identity and it is almost impossible to obtain the information of the infringer that meets the requirements for a suit such as the infringer’s name, gender, age, work unit and home address by the victim alone.
 
In addition, to sue the information publisher, the victim has to prove that there is a cause and effect relationship between the publishing of the information and the privacy tort. But in the case of an internet privacy tort, especially in cases of “internet hunting”, such an issue easily initiates disputes. For example, netizen A posts a photo of X on the internet and invites other netizens to find out about him or her. Netizen B provides the name of the X, netizen C offers information about the location where the photo was taken, netizen D figures out the profession of the victim based on the information provided by B and C, while netizen E finds out the work unit of the victim according to the information provided by all the above netizens. In this case, among the netizens A, B, C, D and E, it will be very hard to determine who has infringed on the privacy of X and whose act can be proved to have no cause and effect relationship with the consequence of a privacy tort. For example, does the information about the victim’s name offered by B belong to privacy? Under what circumstances does the act of C meet the requirements for it to be a tortious act? Therefore, it is really difficult for the victim to directly sue the individuals such as the publisher and the retransmitters of the private information.  
 
Therefore, except when the real name of the initial infringer such as Zhang Leyi appears as in the case of “Wang Fei”, the victim generally takes the internet service provider as the object of prosecution, as the identity of the ISP is easier to ascertain. 
 
From the perspective of the courts, the litigation right of the party includes the right of the party to choose the object of prosecution and it is impossible and unnecessary for the courts to ask the party to add other subjects of the tort to the prosecution.
 
B. Problems of trial combination in the case of internet privacy tort
 
As the infringes of internet privacy tend to be more than one, the victim can choose to sue one or more than one infringer. As to whether the courts should try the defendants together or try them separately, there is no consensus in the jurisprudential circle and the judicial practice circle.  
 
Those advocating a separate trial give the following main reasons: First, from the perspective of the difficulties in pursuing a court trial. An internet privacy tort often involves numerous infringers of the victim’s right to privacy, so it is very common to have more than one defendant. Putting more than one defendant on trial often makes the case very complicated and one judgment usually cannot encompass the complexities of the case and the reasoning clearly. Second, from the perspective of protecting the litigation party’s right. They believe that in a case with more than one defendant, the views of the defendants may be different. If one or several defendants accept the mitigation or judgment of the court, while other defendants insist on appealing to the higher court, all the defendants must come to the appellate court, which is not favourable for the protection of the interests of the litigation party. 
 
But it is more appropriate to try the defendants in a joint trial. First, the law permits a joint trial. If most of the parties have common interests on the object of action, for example, if they have the same object of action, or their object of action is the same facts and results from the same legal cause, then it is defined by law as indispensable joint action. Because in the case of internet privacy tort, various subjects do not carry out joint tort, the suit does not belong to indispensable joint action. However, the tort of the victim’s privacy from different infringers belongs to “the object of action of the same type”, therefore, the defendants can be tried together for the convenience of both the victim and the court.
 
Second, a combined trial makes an investigation of the whole case easier. Although in the case of an internet privacy tort, various infringers do not carry out a “joint tort”, their respective tortious acts are generally related to one another. For example, in the imagined case mentioned above, either of the infringe investigation the tortious act of the other infringer when he states the facts of the case. If these cases are tried separately, it will not be favourable for the courts to find out the cause and effect of the whole case, nor will it be favourable for the courts to have an impartial judgment concerning every case and every party. 
 
Third, a combined trial saves judicial resources and reduces cost of litigation. One of the purposes of a joint action is to improve the efficiency of the courts and save human labour, material resources and financial resources. In a joint action, one trial group can try different cases of tort concerning more than one party at the same time. In this case, the victim can attend just one court trial, which will greatly decrease the cost of the victim in claiming his right.
 
C. Forms of liability in the case of internet privacy tort 
 
According to Article 15 of the Tort Law, forms of liability for an internet privacy tort include: cessation of the infringement, elimination of ill effects, restoration of reputation, an apology and compensation for damage. According to the “Interpretation of Several Issues Concerning the Determination of the Liability for Compensation for Mental Damages in Civil Torts”, compensation in tort of privacy includes compensation for mental distress and compensation for damages to property. 
 
Forms of liability for a tort of internet privacy are no different from those for tort of privacy except for concrete or special practices such as deleting web pages and blocking related information. However, in judicial practice, one difficult problem is to determine the amount of compensation for a tort of internet privacy.
 
First, cessation of the infringement. When someone infringes on the right to privacy of another, the victim should ask for cessation of the infringement according to the law. The applicant can be the victim himself or the victim’s guardian. The applicant can apply to the infringer, and he can also apply to a court. Moreover, the applicant can apply in one way or apply in different ways. When the infringer is committing the infringement, apart from asking the infringer to stop, the victim should also require the infringer to assume civil liability such as issuing an apology and providing compensation for damages. 
 
Second is the elimination of ill effects and restoration of reputation. This liability is in fact a clear manifestation of incorporating the right to privacy into the category of right of reputation in China. That is to say, publicizing or exposing another’s private information not only affects the victim’s private life, but also undermines the victim’s reputation as the privacy rights holder. Therefore, the infringer should eliminate the ill effects openly and restore the victim’s reputation within the corresponding area where ill effects have been produced by a tortious act. But in the internet tort cases, because of the network features of wide distribution and quick dissemination, it is rather difficult to eliminate the ill effects in these kinds of cases, and even in the process of elimination, the victim’s privacy is further infringed. 
 
Third is extending an apology to the victim. Offering compensation is a civil liability generally applicable to the damaging of a person’s reputation, privacy, name or image. In judicial practice, we should determine the method and occasion of the apology considering the nature of the infringement.  
 
Fourth is compensation for damages. Compensation for damages refers to the civil liability that the infringer should compensate the victim for the damage the tortious act causes such as property loss, death or mental anguish. In cases where the victim suffers property losses, following the principle of full compensation, the infringer of the victim’s privacy should compensate for the property losses of the victim, but the cause and effect relationship between an internet privacy tort and property loss is also worth noticing. 
 
An infringement of privacy often causes the victim mental suffering, but whether compensation for the mental distress of the victim will be imposed on the infringer depends on legal stipulation and the circumstances of the case. For, cases involving serious tortious acts that cause severe consequences resulting in the victim’s extreme suffering, or which have a bad influence on the harmony of the victim’s family, or cause serious damage to the victim’s image and reputation, compensation for the mental distress of the victim may be required. One of the purposes of compensation for mental distress is to ease the victim’s psychological trauma. In specific cases, with appropriate mediation, if the victim could show understanding after the court requires the infringer to compensate for non-physical damage, indicating that the victim’s psychological trauma has been healed, then compensation for mental distress can be exempted. But if the victim does not show understanding, then compensation for mental distress should be imposed. Ordering the offender to compensate for any damages is the punishment of the offender by the state, seen from another point of view. If the offender can realize his mistake, and he has also obtained the understanding of the victim, showing that the purpose of education has been achieved, then this punishment can be exempted.  Finally, the economic situation and the attitude of the offender in acknowledging his fault, the losses and financial situation of the victim, the influence of tort and the level of the local economy as well as highest amount of mental damage compensation defined in the western countries, can all be taken into account in China’ s relevant legislation. 
 
(Translated by ZHANG Wenhong)