Transcript Personal Information Protection in China
Personal Information Protection in China Recent Development of the Chinese Civil and Criminal Cases
Prepared for The Third Asian Privacy Scholars Network Conference, Faculty of Law, UHK, 8-9 July, 2013
Dr George Tian Senior Lecturer, Faculty of Law University of Technology Sydney (UTS) Email: [email protected]
Structure
Part I: Overview of Personal Information Protection Laws in China
Part II: Recent Cases on Personal Information Protection in China
2.1. Recent Development of the Chinese Civil Cases
2.2. Recent Development of the Chinese Criminal Cases
Part III: Challenges & Recommendations
3.1. Challenges of protecting personal information in China
3.2. Suggestions for future Legal Reform
Part I: Overview of the Personal Information
Protection Regime in China
1.1. General Feature 1.2. Existing Laws and regulations 1.3. Comments and Remarks
1.1. General Feature
China is still in the process of establishing a comprehensive legal framework to regulate the use and disclosure of personal data not currently have a national level law that delineates how a company can legally collect, process and retain personal data.
“The country’s information protection regime consists of a patchwork of
sector-specific laws and guidelines , stand-alone provisions regional laws”.
in broader laws, and
--- (Cave, 2013)
1.1. General Feature
But … it seems that such a situation is changing gradually….
New Efforts of Harmonization
Particularly in the laws.
recent two or three years, China made a good progress in harmonizing its personal data protection E.g. making law, regulations and guidelines for protecting personal information protection on the Internet
E.g. MIIT Guideline 2013 (more details will be discussed later)
Draft of Personal Information Protection Law (since 2005)
1.2. Existing Personal Data Protection
Rules
in China
1.
Constitution Law
2. Civil Law Articles 38 and 40 R i ghts that relate to privacy , e.g.
right of dignity of the person, - prohibitions against insult , defamation , false accusation or false information directed against Chinese citizens, and right of freedom and secrecy of correspondence . Article 120 the
General Principles
of the Civil Law protect a citizen’s right of personal name, portrait, reputation or honor. 6 6
Existing Personal Data Protection Rules in China
3.
Criminal Law (7 th Amendment)
Article 253 (1) make
working personnel
of
state agencies , or of organizations
in particular industry sectors , potentially subject to criminal liability, - if they sell or illegally provide to other persons individual information of citizens obtained during the course of such organization’s performance of official duties or provision of services. (2) An
organization and its responsible officers
could also be made subject to the same criminal liability , - if it obtains information that had been misappropriated in this way. 7 7
Existing Personal Data Protection Rules in China
4.
Tort Liability Law 2009
(effective on July 1st, 2010)
5.
Interpretation of the Supreme People’s Court on Issues regarding the Ascertainment of Liability for Compensation for Psychological Damages in Civil Torts Articles 2, 6, 3, 15, 36, 61, 62
-
contains provisions which establish a right of a private citizen to
sue for
damages or other remedies in tort , in cases where medical records are mishandled and in cases where the internet is used to harm the interests of the private citizen or, more generally, in cases where the private citizen’s
right of privacy
, health , name , reputation , honor or portrait has been infringed upon and damages have occurred
protect an individual’s rights of personality, including an individual’s privacy, - by granting a right to claim for psychological damages.
8 8
Existing Personal Data Protection Rules in China
6 The Guidelines for
Payment and Clearing Organizations on Anti money Laundering and Anti-terrorist Financing 2009
(issued by the People’s Bank of China) 7
Interim Measures for the Administration of the Basic Data of Individual Credit Information 2005
(issued by the People’s Bank of China) -
require payment and clearing organizations and
-
their branches to establish internal control systems to prevent money laundering and terrorist financing, and to establish systems for the ascertainment client identities, for the reporting of of suspicious transactions, and for the preservation of client identity and transaction records..
prohibit
governmental authoritie s and other organizations , as well as their staff , from disclosing personal information which they may obtain in the course of their work.
Violators
will be subject to administrative punishment and civil compensation . 9 9
8.
9.
Existing Personal Data Protection Rules in China
The Norms for
Electronic Medical Records of Traditional Chinese Medicine (for Trial Implementation) 2010
(issued by the State Administration of Traditional Chinese Medicine) require medical organizations to set up information security schemes for electronic medical records and establish corresponding powers for doctors, nurses and other management staff in the hospital to read, copy, and type electronic medical records, and require hospitals to establish usage records for the electronic medical records.
prohibit
any entity or individual from reading or copying electronic medical records without due authorization . The Basic Norms for
Electronic Medical Records 2010
(issued by the Ministry of Health) prohibit unauthorized review of patients’ medical records by other institutions and persons besides the medical personnel that perform the medical activity and quality control personnel. [Exemption] permit the review of medical records, after obtaining consent of the medical institution, for the 10
Existing Personal Data Protection Rules in China
10. Social Insurance Law 2010 11. The Provisions on the
Management of Social Insurance Records
（
(for Trial Implementation) 2009
issued by the Ministry of Human Resources and Social Insurance and State Archives Administration ）
prohibit
governmental authoritie s and other organizations , as well as their staff , from disclosing personal information which they may obtain in the course of their work.
Violators
will be subject to administrative punishment and civil compensation . require that social insurance records , including medical insurance records, comply with applicable requirements on storage, confidentiality, use, transfer, validation, and destruction of archives, that they be stored properly , and that damage to or destruction, loss, and disclosure of social insurance records be prevented. 11 11
Existing Personal Data Protection Rules in China
10.
MIIT Regulation of December 2011 (effective 15 March 2012) - ‘Several Regulations on Standardizing Market Order
for Internet Information Services’
11. The Decision of the Standing Committee of the National
People’s Congress on Strengthening Information Protection on Nation Network – December 28, 2012
12 MIIT Guidelines for Personal Information Protection within Public and Commercial Services Information Systems (2013)
Sectorial and Provincial Laws..
Administrative Laws and regulations…
12 12
China’s internet Laws & Regulations PKU Report 2011 – Existing Internet Laws in China
Group 2: Other laws related to Internet governance: 21 E.g. Patent Law, Trade Mark Law, Copyright Law, et al Group 1: Laws on Internet: 2
Decision of the Standing Committee of the National People’s
Congress on the Internet Security 2000 Digital Signature Law 2004 Group 3: Administrative regulations & Ministerial Rules. Administrative regulations: 51 Ministerial rules: 843.
China’s internet Laws & Regulations PKU Report 2011 – Existing Internet Laws in China
Group 4: Juridical interpretations E.g. digital copyright and ISP safe harbour provisions Group 5: Self-regulations: 46. After 2011….
New Development in 2012 : Laws on the Internet Decision of the Standing Committee of the National People’s Congress on Strengthening Information Protection on Na Network – December 28, 2012
3.2. Recent development of the personal data regulations 3.2.1. MIIT Guidelines 2013
MIIT Guidelines for Personal Information Protection within
Public and Commercial Services Information Systems (2013) In theory, these voluntary guidelines are not as important as the two regulatory instruments of 2011/12 covering part of the same territory (primarily Internet IISPs), The Decision of the Standing Committee of the National People’s Congress on Strengthening Information Protection on Nation Network – December 28, 2012
the MIIT Regulation of December 2011 (effective 15 March 2012) ‘Several Regulations on Standardizing Market Order for Internet Information Services’.
3.2. Recent development of the personal data regulations 3.2.1. MIIT Guidelines 2013 - PI
However, these 2013 Guidelines apply to a much broader range of businesses, and they cover key issues (such as data exports, sensitive data, and subject access and correction rights), and provide some details, not covered in the earlier instruments. Definition of Personal Information
1.3. Remarks: Existing Laws and regulations
Remarks: The current features of the Chinese personal information protection framework do affect the effective enforcement of PI protection laws at both civil and criminal levels.
Part II: Recent Cases on Personal Information Protection in China
2.1. Recent Development of the Chinese Civil Cases
2.1.1. Overviews
2.1.2. Civil Case – Mr Guo vs Minsheng Bank
2.2. Recent Development of the Chinese Criminal Cases
2.2.1. Overview & Statistics
2.2.2. Criminal Case against Individual - China vs. Xu [2013]
2.2.3. Criminal Case against Company - China vs. Shanghai XX IT Company [2013]
2.2.4. Progress vs. Uncertainty
2.1. Recent Development of the Chinese Civil Cases 2.1.1. Overview
“The country’s information protection regime consists of a patchwork
of sector-specific laws
and guidelines , stand-alone provisions in broader laws, and
regional laws”.
--- (Cave, 2013)
Challenges to the Courts Civil Law Code Laws/regulations/guideline at different levels
2.1. Recent Development of the Chinese Civil Cases 2.1.2. Guo vs. Minsheng Bank [2012]
Case: Tort of Privacy Invasion by Bank
Mr. Guo , a citizen in Nanjing (Capital city of Jiangshu Province) sued the Minsheng Bank in the Nangjing Xuanwu District Court in 2012 .
The Court held that the bank’s conducts constitute the tort of privacy invasion. Mr Guo was a former Credit Card users of the Minsheng Bank Nanjing Branch. But, in May 2011, he surprisingly discovered that, although he got his Minsheng credit card cancelled, without his authorization, the Minsheng Bank, has twice investigated his personal credit information from the Nanjing Branch of the People's Bank of China (his current bank) under the names of credit card approval and loan approval in 2010 and in 2011 respectively.
2.1. Recent Development of the Chinese Civil Cases 2.1.2. Guo vs. Minsheng Bank [2012]
Case: Tort of Privacy Invasion by Bank
The explanation given by the Minsheng Bank Nanjing Branch was that the bank is conducting “2 nd Round customer development”. Mr. Guo did not accept this explanation, and filed a Complaint to the Management Division of the People’s Bank Nanjing Branch. In December 2011, after investigation, the People’s Bank Nanjing Branch found that Minsheng bank indeed inspected the credit record of Mr. Guo without his authorization. According to the
Interim Measures for the Administration of the Basic Data of Individual Credit Information 2005
(issued by the People’s Bank of China), It imposed 20,000 CNY (3,278 USD) monetary penalty to Minsheng Bank.
2.1. Recent Development of the Chinese Civil Cases 2.1.2. Guo vs. Minsheng Bank [2012]
Case: Tort of Privacy Invasion by Bank
Mr. Guo believed that the conducts of the Minshen Bank infringed his privacy right, and initiated a civil litigation against Minshen Bank in the Nanjing Xuanwu District Court , and asked the bank to make a written apology on Newspapers. In March 2012, the Xuanwu district court made a decision in favour of Mr.
Guo, and requested the Minsheng Bank Nanjing Branch to make a written apology to Guo .
2.1. Recent Development of the Chinese Civil Cases 2.1.2. Guo vs. Minsheng Bank [2012]
Hints from this Case: Tort of Privacy Invasion by Bank
Enforcement Agencies
The People’s Bank Nanjing Branch Nanjing Xuanwu District Court
Relevant Laws and regulations:
Civil Law Civil Tort of Liability Law
Interim Measures for the Administration of the Basic Data of Individual Credit Information 2005
(issued by the People’s Bank of China)
2.2. Recent Development of the Chinese Criminal Cases 2.2.1. Overview & Statistics
Criminal Law (7 th
Amendment 2009) Crime of selling Personal Information of Citizens
Crime of illegally providing Personal Information of Citizens
Crime of illegally obtaining Personal Information of Citizens
Based on the information provided by the Public Prosecutate of
Beijing Haidian District,
In 2010 , they handled 31 cases ( 41 people involved), which were related to a breach of the Criminal Law for illegally obtaining to Personal Information of Citizens.
VII. An Article is inserted after Article 253 of the Criminal Law as Article 253 (A): “Where any staff member of a state organ or an entity in such a field as finance, telecommunications, transportation, education or medical treatment, in violation of the state provisions, sells or illegally provides personal information on citizens, which is obtained during the organ’s or entity’s performance of duties or provision of services, to others shall, if the be fined. circumstances are serious , be sentenced to fixed-term imprisonment not more than three years or criminal detention, and/or Whoever illegally obtains the aforesaid information by stealing or any other means shall, if the circumstances are serious , be punished under the preceding paragraph. Where any entity commits either of the crimes as described in the preceding two paragraphs, it shall be fined, and the direct liable person in charge and other directly liable persons shall be punished under the applicable paragraph.”
2.2. Recent Development of the Chinese Criminal Cases 2.2.1. Overview & Statistics
Key Features of this type of criminal cases:
1. Measures of Crime – Online trading
20 of 31 cases happened on the Internet – 64.5% of the total cases
Step 1: Buyers search online via Baidu or Google to find Sellers
Step 2: Join in special QQ Group
Step 3: communicate via QQ or Emails
Step 4: Bank transfer and Data Transfer
7 of 31 cases – face-to-to trading – 22.5%
2.2. Recent Development of the Chinese Criminal Cases 2.2.1. Overview & Statistics
Measures of Crime
Via the Internet Face-to-Face Others
2.2. Recent Development of the Chinese Criminal Cases 2.2.1. Overview & Statistics
Key Features of this type of criminal cases: … 2. Purpose of Crimes – Expand their market & sell for money
26 of 41 people used the obtained personal information for marketing purposes – 63.4%
14 of 41 is for selling to others – 34.1% .
2.2. Recent Development of the Chinese Criminal Cases 2.2.1. Overview & Statistics
Purposes of Crime
Marketing purposes Re-selling purpose Others
2.2. Recent Development of the Chinese Criminal Cases 2.2.1. Overview & Statistics
Key Features of this type of criminal cases: … 3. Targeted Information
Car owner information – 15 of 31 cases – 48.3%
Bank customer information – 10 of 31 cases – 32.2%
Company CEO – 5 of 31 cases – 16.5%
Phone records/ID card information/shopping records – 3 * 3 - 9.6% respectively
Customer information of Carrier company & new-born information – 2*2 – 6.4% respectively, et al…
In many cases, parties involved obtained multi-type information
2.2. Recent Development of the Chinese Criminal Cases 2.2.1. Overview & Statistics Targeted Information
Car owner information Bank customer information
2.2. Recent Development of the Chinese Criminal Cases 2.2.1. Overview & Statistics
Key Features of this type of criminal cases: … 4. High Risk Group – employees in marketing and insurance sectors
11 of 41 people - salesman – 26.8%
5. New High Risk Group : Company leaders & private detectors companies
Company leaders – 10 of 31 cases (13 of 41 people) – 32.2%
Mangers of private detectors companies – 4 of 31 cases (5/41) – 12.9%
2.2. Recent Development of the Chinese Criminal Cases 2.2.2. China vs. Xu [2013]
Criminal Case against Individual
Criminal Judgments by the People’s Court of Shanghai Pudong New District Case Number: (2013) Pu Criminal First 1087((2013) 浦刑初字第 1087 号 ) Prosecutor: People's Procuratorate of Shanghai Pudong New District Defendant: Xu On April 1, 2013, the Prosecutor initiated a criminal litigation against the Defendant on the ground that the Defendant breached the Criminal Law by illegally obtaining personal information of citizens.
On the same day, the Court filed the case and applied a summary procedure (simplified) to this case. A single judge was appointed and the case was concluded.
2.2. Recent Development of the Chinese Criminal Cases 2.2.2. China vs. Xu [2013]
The Prosecutor On April 25, 2012, the Defendant and claimed that: purchased Xu spent 500 Yuan (around 80 USD ), more than one million pieces of Customer Order Information of the “No.1 Store” site - personal information of citizens – from Zhang (handled separately) via the Internet. On November 23, 2013, the Defendant above facts.
Xu was arrested and confessed all The Defendant Xu has indicated no objection to the facts that the Prosecutor claimed above in the court proceeding.
2.2. Recent Development of the Chinese Criminal Cases 2.2.2. China vs. Xu [2013]
The Court also took into account the evidences, such as: - Testimonies made by Witness Wang and Witness Zhang - QQ Screenshots, - Chat records - Alipay transaction records (Chinese PayPal) - the list of seized items, - and other evidences.
‘The Court found that the Defendant Xu illegally obtained personal information of citizens, and the circumstances are serious. As such, his conducts constituted a breach of the Criminal Law.’
2.2. Recent Development of the Chinese Criminal Cases 2.2.2. China vs. Xu [2013]
‘The Court upheld the claims made by the Prosecutor. By virtue of Article 253 (1)(2), Article 67(3), Article 72, Article 73(2)(3) and Article 53 of the Criminal Law , the Court made a judgment as follows: Defendant Xu beached the provision of illegally obtaining to personal information of citizens, and was sentenced to six months imprisonment , suspended for one year (probation) and a monetary penalty applied.’ of one thousand Yuan (around 163 USD )
上海市浦
东新区人民法院
刑事判决 （ 2013 ）浦刑初字第 1087 号 被告人徐某，因本案于 2012 年 11 月 23 日被刑事拘留，同年 12 月 21 日被逮捕， 2013 年 1 月 29 日被上海市公安局浦 东 分局取保候 审，同年 3 月 22 日被上海市浦 东新区人民检察院取保候审。 辩护人赵振华，上海市世通律师事务所 律 师。 上海市浦 东新区人民检察院以沪浦检刑诉 〔 2013 〕 969 号起 诉书指控被告人徐某犯非法获取公民个人信息 罪，于 2013 年 4 月 1 日向本院提起公 诉。本院于同日立案并依法适用简易程序，实行独任审判，公开开庭审理了本 案。上海市浦 东新区人民检察院指派代理检察员席娜出庭支持公诉，被告人徐某及其辩护人赵振华到庭参加诉讼。 现已审理终结。 上海市浦 东新区人民检察院指控， 2012 年 4 月 25 日，被告人徐某在互 联网上从张某某（另案处 理） 处，以人民币 500 元的价格 购得一号店网站 100 余万条（以收 货人姓名为关键项去除重复处理后共计 28 万余条） 订单信息数据的公民个人信息。 实。 上述事 罚金自判决生效后一个月内缴纳。） 2013 年 11 月 23 日，被告人徐某被公安机关抓 获，到案后如实供述了上述犯罪事 实，被告人徐某在开庭审理过程中亦无异议，并有经庭审质证属实的证人王某某、张某某的证 言， QQ 截屏 图片、聊天记录、支付宝交易记录，扣押物品清单，公安机关出具的案发经过及工作情况，被告人徐 某的 户籍资料等证据证实，足以认定。 本院 认为，被告人徐某非法获取公民个人信息，情节严重，其行为已 构成非法 获取公民个人信息罪。公诉机关指控的事实及罪名成立，予以支持。被告人徐某到案后能如实供述并自愿 认罪，系坦白，依法从轻处罚。依照 《中 华人民共和国刑法 》第二百五十三条之一第一、二款、第六十七条第三 款、第七十二条、第七十三条第二、三款、第五十三条之 规定，判决如下： 信息罪，判 处有期徒刑六个月，缓刑一年，罚金人民币一千元。 被告人徐某回到社区后， 教育，参加公益 劳动，做一名有益于社会的公民。 被告人徐某犯非法 获取公民个人 （ 缓刑考验期限，自判决确定之日起计算； 应当遵守法律、法规，服从监督、管理，接受 如不服本判决，可在接到判决 书的第二日起十日内，通过 本院或者直接向上海市第一中 级人民法院提出上诉。书面上诉的，应当提交上诉状正本一份，副本二份。 代理 审判员 师坤鹏 二〇一三年四月十八日 书记员 陆玮
2.2. Recent Development of the Chinese Criminal Cases
2.2.3. China vs. Shanghai XX Information Technology Company
[2013]
Criminal Case against Company
Criminal Judgments by the People’s Court of Shanghai Pudong New District Case Number: (2013) Pu Criminal First 864((2013) 浦刑初字第 864 号 )
Prosecutor
: People's Procuratorate of Shanghai XX District
Defendants
: Shanghai XX Information Technology Company (referred to XX company ); Legal Representative: Bai XX .
On March 13, 2013, the Prosecutor initiated a criminal litigation against the Defendant on the ground that the Defendant breached the Criminal Law by illegally obtaining personal information of citizens.
The Court filed the case and applied a (simplified) summary procedure to this case. A single judge was appointed and the case was concluded.
2.2. Recent Development of the Chinese Criminal Cases
2.2.3. China vs. Shanghai XX IT Company [2013]
The Prosecutor claimed that: In July 2012, in order to expand the Company’s market, the Defendant Bai authorized Zuo (handled separately), the Manger of the Marketing Division of the Company, to purchase more than one million pieces of Customer Order Information - personal information of citizens – from Liu (handled separately) at the price of 900 Yuan (around 146 USD ) via the Internet.
On February 21, 2013, the Defendant Bai went to the Public Security authority and make a voluntary confession .
The Defendants, XX Company and Bai , have indicated no objection to the facts that Prosecutor claimed above in the Court proceeding.
2.2. Recent Development of the Chinese Criminal Cases
2.2.3. China vs. Shanghai XX IT Company [2013]
The Court has also taken into account the evidences, such as: - Alipay transaction screenshot (Chinese PayPal) - Relevant invoices - Testimony by Witness Cui - Testimonies by related parties Zuo and Liu the list of seized items, - and other evidences.
2.2. Recent Development of the Chinese Criminal Cases
2.2.3. China vs. Shanghai XX IT Company [2013]
‘The Court found that the Defendants, XX Company and Bai, illegally
obtained personal information of citizens, and the circumstances were serious.
The conducts of Bai , who was directly in charge of personnel of the Company, has constituted a breach
of the Criminal Law.
Given that the XX Compand and Bai voluntarily confessed to the Public Security Authority and pleaded guilty in the Court, by virtues of relevant laws, the Court decided to apply a lighter punishment .’
2.2. Recent Development of the Chinese Criminal Cases
2.2.3. China vs. Shanghai XX IT Company [2013]
By virtue of Article 253 (1), Article 67(1), Article 72(1)(3), Article 73(2)(3) and Article 53 of the Criminal Law, the Court made a judgment as follows: 1. Defendant XX Company beached the provision of illegally obtaining to personal information of citizens, and needs to pay a monetary penalty of 30,000 Yuan (around 5,000 USD).
2. Defendant BAI beached the provision of illegally obtaining personal information of citizens, and was sentenced to six months imprisonment , suspended for one year and a monetary penalty of 10,000 Yuan (around 1,630 USD ).
Judge Ling Hong March 21, 2013
VII. An Article is inserted after Article 253 of the Criminal Law as Article 253 (A): “Where any staff member of a state organ or an entity in such a field as finance, telecommunications, transportation, education or medical treatment, in violation of the
state provisions
, sells or illegally provides
personal information
on citizens, which is obtained during the organ’s or entity’s performance of duties or provision of services, to others shall, if the circumstances are serious , be sentenced to fixed-term imprisonmen t not more than three years or criminal detention, and/or be fined . Whoever illegally obtains the aforesaid information by stealing or any other means shall, if the circumstances are serious , be punished under the preceding paragraph. Where
any entity
commits either of the crimes as described in the preceding two paragraphs, it shall
be fined
, and the direct liable person
in charge
and
other directly liable persons
shall
be punished
under the applicable paragraph.”
2.2. Recent Development of the Chinese Criminal Cases 2.2.4. Remarks: Progress vs. Uncertainty
Progress:
The new amendment started to be well enforced.
Uncertainty:
Lack of a clear definition of “personal information” The meaning of “ state provisions ” The meaning of “if the circumstances are serious”/ “severe consequence” Next, BACK to the issues at the national level…
Part III: Challenges & Recommendations
3.1. General Challenges of protecting personal data in China
3.1.1. Hints from 2013 BSA Global Cloud Computing Scorecard Ranking improved Lack of laws and industrial rules 3.1.2. Challenges from Legal Tradition
3.2. Suggestions for future reform
3.2.1. Three models: US, EU and Australia 3.2.2. Enforcement Agencies
3.1. General Challenges
3.1.1. Hints from 2013 BSA Global Cloud Computing Scorecard
The BSA survey examined the policy environment for CC in several countries around the world.
The BSA survey examined 24 countries , which together account for 80 percent of the global ICT market.
The BSA Scorecard Measuring CC Readiness
2013 BSA Global Cloud Computing Scorecard
The BSA Scorecard Measuring CC Readiness
It examines major laws and regulations relevant to CC in seven policy categories as well as each country’s ICT related infrastructure and broadband deployment.
1. Data Privacy 2. Security 3. Cybercrime 4. IPRs 5. Support for Industry-Led Standards & International Harmonization of Rules 6. Promoting Free Trade 7. ICT Readiness, Broadband Deployment.
3.1. General Challenges 3.1.1. Hints form 2013 BSA Global CC Scorecard
China’s Ranking +2 (in comparison with 2011) 19 th of 24
Screen Shot 2013-07-05 at 1.08.10 PM
3.1. General Challenges 3.1.1. Hints form 2013 BSA Global CC Scorecard
As mentioned above….
Progress: Recent development – all about protecting personal information on the Internet (rather than general protection measures) Further improvements: Lack of the Personal Information Protection Law at the national level Lack of unified privacy enforcement authority at the national level Challenges for the quick growth of Innovation Industry
3.1. General Challenges
3.1.2. Challenges from Legal Tradition China’s overall regulatory approach may presents challenges to the development of innovation industry, such as cloud computing. 1. China’s preference for top-down mandatory regulation is often at odds with the type of public-private collaboration and industry self regulation so critical to growing new technologies. 2. data protection and data sovereignty fears, as well as cybersecurity concerns, are creating barriers for deployment of leading global technologies. 3. complicating the policy environment controls. is China’s drive to promote domestic industry, as well as preserve its existing market access (USITO, 2012)
3.2. Suggestions for future laws and policies reform 3.2.1. Three models: US, EU and Australia
EU Model: Centralized US Model: Decentralized Australia Model: Centralized law and principles + detailed industrial guidelines.
Recommendation 1 – May consider drawing on lessons from the experiences of Australian Model to harmonize the existing laws on personal data protection
3.2. Suggestions for future laws and policies reform 3.2.2. Enforcement Agencies
Recommendation 2: May consider leaving privacy cases to Intellectual Property Courts (IP, Antitrust, Personal Information Protection) Recommendation 3: Courts may play a more active role in explaining how existing data protection laws could be applied Chinese Supreme Court may issue a Guideline on this issue – more judicial interpretations
Conclusion and Remarks
“Based on the global opportunity that Cloud Computing presents, each country’s policy changes will alter not just that country’s environment but the global market for CC as a whole .” (BSA, 2013) …. apply this idea broadly….
Conclusion and Remarks
“Based on the global opportunity that
Information Economy
presents, each country’s policy changes will alter not just that country’s environment but the global Information Economy as a whole .”
Acknowledgment
Prof. Graham Greenleaf, Faculty of Law, UNSW Mr. Yun Xuan, Director of IP Policy and Enforcement Division, Microsoft (China) Co., Ltd Ms. Sophia Wang, Director & Chief Representative, China, BSA, The Software Alliance