Privacy Protection and Freedom of information in China: Resolving Conflicts and Promoting Accountability

Abstract

The right to privacy and freedom of information (FOI) and are two fundamental rights in democratic and transitional societies. They complement each other in holding government accountable to individuals, but they also overlap when request is made by an individual to disclose government information involving personal data about other individuals. With the rapidly evolving network society mediated by Information and Communication Technologies (ICT) and the reforms in law in many countries, tension increases between the exercises of these two rights. Meanwhile, opportunities also arise to enhancing privacy protection against government surveillance in the aid of FOI. In China, the political priority on social stability has increased the potential for government surveillance and aggravated secrecy, notwithstanding the advancement of legislation in enhancing both personal privacy and government transparency. At the legislative level, the ground-breaking Regulation on Open Government Information 2007 has established a right for Chinese citizens to access government information in this party-state regime, and recognises privacy as an exemption to that right. At the same time, a series of legislation have been enacted since 2009 to recognize a general right to privacy or specific rights to protection of personal data, but fails to provide operable standards. In particular, there is an imbalance between legislative protection against intrusion by administrative authorities and that against violations by private bodies. Media reports show that, while the authorities are slow in protecting the right to privacy in other contexts, they frequently invoke the privacy exemption justify non-disclosure of government information. Given the lack of clear statutory definition of privacy, the public are concerned that privacy could be misused to shield government decisions form public scrutiny. Where valid privacy claims exist indeed in FOI context, people also question whether the better balance can be attained to both uphold individuals’ legitimate expectations of privacy and promote the public interests served by disclosure, such as identifying frauds in the distribution of welfare or misuses of public funds by officials. The proposed paper reviews how the Chinese legislation and the implementing bodies (i.e. the courts) treat the two rights in the context where they are connected. It seeks to discover whether the enforcement of law has promoted the common values of both rights, including inter alia holding the government accountable to the public, and assess the quality of the approach to balancing these rights where their conflicts arouse great public concern. It will identify the inadequacies within the legal system, and make suggestions on the doctrinal development in judicial review as well as the reforms in future legislation.