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5 Mar 2015

State Administration for Industry and Commerce Promulgated Regulations Strengthening Personal Information Protection

On 5 January 2015, the State Administration for Industry and Commerce of the People’s Republic of China promulgated Measures for Punishments against Infringements on Consumer Rights and Interests (“Measures”), effective 15 March 2015. The Measures set forth relevant rules of the Law on the Protection of Consumer Rights and Interests (last amended on 25 October 2013, “Consumer Protection Law”) with respect to personal information in further details, and provide a basis for law enforcement of the industrial and commercial authorities. The main contents of the Measures are as follows:

Scope of Personal Information

Article 11 of the Measures define the term “personal information” to mean information that “can recognize consumers independently or in combination with other information,” and provide specific examples which include “consumer name, gender, occupation, birth date, identity card number, address, contact information, income and property information, health status, and consumption information”. The definition not only explains the concept of “consumer personal information” in the area of consumer protection, but also serves as an important reference for future legislation of personal information protection in other areas.

Rules Regulating Business Operators’ Dealing with Personal Information

According to the Measures, when collecting and using personal information, business operators must adhere to the principles of lawfulness, appropriateness and necessity, expressly state the purpose, methods and scope of information collection and use, and, notably, obtain consumers’ consent.

In addition, the Measures prohibit business operators from:

  • Collecting or using a consumer’s personal information without the consumer’s consent;
  • Divulging, selling or unlawfully providing to others the collected personal information of consumers; and
  • Sending commercial information without a consumer’s consent or request, or despite a consumer’s explicit refusal.

Punitive Measures

The Measures provide that business operators in violation of provisions on personal information would be deemed in violation of the Consumer Protection Law, and would be subject to both civil and administrative remedies. The administrative remedies include being ordered correction, warned, fined, or even the revocation of business license. It should be pointed out that administrative punishments imposed on business operators will be recorded in the business operators’ credit files and will be made public.

In recent years, PRC government authorities at all levels (the National People Committee Standing Committee, the State Council, the Ministry of Industry and Information Technology, the Supreme Court, etc.) have promulgated a number of laws and regulations on personal information protection (please see our previous newsletters for further details: www.dahuilawyers.com/publications/China-Strengthens-the-Protection-of-Personal-Infor/; and www.dahuilawyers.com/publications/The-Chinese-Government-Strengthens-Personal-Inform/).

The Measures set forth relevant rules of the Consumer Protection Law in more detail with respect to personal information protection, which is another major step taken by PRC regulators to further strengthen personal information protection. Although some provisions (e.g., the definition of “personal information”) are still quite broad, the exact meaning and scope of the terms will remain subject to interpretation and clarification in its actual enforcement.

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