China's new Civil Code – Part 4: Personality Rights

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published on 5 August 2020 | reading time approx. 3 minutes

 

The new Civil Code (CC) of China, which will enter into force on January 1, 2021, consists of 7 parts. With this series of articles we inform about the essential legal provisions and new regulations in the new Civil Code. This article is focused on some aspects of the fourth part of the Civil Code – Personality Rights.

  

  

Background

In contrast to many other parts of the new Civil Code, Part 4 - Personality Rights - is not based on a precedent law that was incorporated into the Civil Code. Instead, regulations that were scattered in various laws were bundled together and supplemented by provisions in administrative regulations and court interpretations. The inclusion of personality rights in the Civil Code represents a significant development and innovation in Chinese law.

Structure and essential content

Part 4 of the Civil Code consists of six chapters on personality rights. These are firstly general provisions, the right to life, physical integrity and health, the right to a name, the right to one's own image, the right to reputation and honor and the right to privacy and protection of personal data.

Definition of personality rights

The personality rights constitute the above-mentioned list of the basic rights of a civil law subject, which are further specified in the Civil Code. As subjects of civil law, natural persons also enjoy other personal rights that arise from personal freedom and personal dignity. Personal rights may not be violated by organizations or individuals. Furthermore, they cannot be abandoned, nor can they be assigned or inherited.

The right to life, physical integrity and health

This chapter reiterates the basic principle that neither an organization nor an individual may endanger the life of a person or injure physical or mental health. The same applies to the unlawful detention of persons or an unlawful search for persons. In all cases, the victim can demand compensation from the offender.

In the case of sexual harassment, the victim is now also entitled to compensation from the offender. In this context, companies, schools, universities, etc. are obliged to adopt and implement internal regulations regarding protection against sexual harassment, handling of complaints and reports, education and cooperation with investigation authorities.

Furthermore, the chapter contains provisions on organ donation, on medical research and the prohibition of organ trafficking.

The right to one's own image

Every natural person has the right to their own image. Without the consent of the owner of the rights to an image, the image of a person may not be used or made public through publication, reproduction, editing, rental, exhibition, etc. Exceptions exist in cases provided for by law, for example for state organs or for the purpose of maintaining public interests.

The right to reputation and honor

Pursuant to the provisions of this chapter, no one shall injure the reputation and honor of any person, for example by spreading rumors. In the event of false reports, for example in a newspaper, the person concerned may request a counter-statement.

The personal rights in this chapter are also of great importance for the social credit of individuals. These include a right to information as well as the right to object to and correct erroneous entries. The organization responsible for the erroneous entry is obliged to correct it immediately.

The right to privacy and protection of personal data

Every natural person has the right to privacy. No organization or individual shall violate another person's right to privacy by spying, intrusion, disclosure or publication of relevant information or by any other means.

In addition, the Civil Code stipulates the protection of personal data. This includes all types of information, recorded electronically or otherwise, that can be used to independently identify a specific natural person or combined with other information to identify a specific natural person, including the natural person's name, date of birth, ID numbers, biometric information, addresses, telephone numbers, e-mail address, health information, whereabouts, etc.

Personal data may only be processed with the consent of the data subject or his/her guardian. When processing such information, the other applicable laws and regulations must be observed. The processing of personal data includes the collection, storage, use, processing, transmission, provision and disclosure of personal data, etc. Collected and stored personal data may not be made public or falsified. They may only be disclosed with the consent of the data subject, unless the data have been processed in such a way that identification of the person or recovery of the data is impossible.

Individuals have the right to access their collected personal data and to request correction of any inaccurate data.

Legal implications

The personal rights codified in Part 4 of the Civil Code can have a considerable impact on companies, as they can also apply, for example, in relation to employees.

However, the provisions on the protection of personal data are not a fundamental innovation in Chinese law, as corresponding regulations are already contained in the Cyber Security Law  and other related regulations. Nevertheless, companies should (once again) take the provisions of the new Civil Code as an opportunity to review their internal regulations and adapt them if necessary.

Attention should also be paid to the regulations on sexual harassment. These explicitly address also employers to implement internal regulations for the protection against sexual harassment as well as regulations for handling corresponding complaints and for the investigation of such offences. Companies should therefore also review their internal regulations such as the Code of Conduct and the employee handbook in this context and adapt and supplement them if necessary. Otherwise, if such internal regulations are not in place, a company may also be liable for damages in addition to the actual offender.

In the next article of this series we will focus on some aspects of Family Law - Part 5 » of the Civil Code.
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