Right to Privacy in China’s Civil Code and its Impact on HR Management

On May 28, 2020, the Civil Code of the People’s Republic of China (henceforth the Civil Code) was promulgated, and it took effect on January 1, 2021.

Among all the personal and property rights that are comprehensively stipulated, the Civil Code allocates a standalone chapter with eight articles (Article 1032 to Article 1039) to the right of privacy and the protection of personal information protection, which will enhance the protection of privacy and personal information.

This will surely affect the human resource management of businesses operating in China, as it is inevitable for employers to obtain employees’ personal information and even conflict with workers’ right of privacy when exercising the right of employment management.

In this article, we briefly introduce the privacy right in the Civil Code and its specific implications for the employment management in China.

What does China’s Civil Code say about the right to privacy?

Definition of privacy

According to Article 1032 of the Civil Code, privacy is a natural person’s private life peace, as well as private space, private activities, and private information that they do not want to be known by others. No organization or individual may infringe upon the right to privacy of any other person by spying, invading personal space, harassing, disclosing, or publishing personal information, or by any other means.

Typical infringement Acts

And article 1033 enumerates some of the typical acts that are regarded as infringements to privacy – unless otherwise prescribed by the law or specifically agreed to by the right holders, the following acts are not allowed to be carried out by any organization or individual:

• Disturbing the private peace of others by means of telephone, text message, instant messaging tools, e-mails, leaflets, etc.;
• Entering, taking pictures of, or peeping into others’ houses or hotel rooms or other private space;
• Taking pictures of, peeping into, eavesdropping, or making public the private activities of others;
• Taking pictures of or peeping into any private part of the body of another person;
• Dealing with the confidential information of others; or
• Infringing upon the right to privacy of others by other means.

Given the scope of the Civil Code, there will be new changes that may conflict between the enterprises’ employment management right and the protection of employees’ privacy during employment.

Where do the right to privacy disputes usually arise?

In practice, the privacy right disputes between employers and employees mostly occur in three stages, namely, recruitment period, employment period, and post-leaving period:

Privacy right and employment discrimination

During the recruitment period, there is a conflict between job seeker’s privacy right and company’s right to be informed. According to Article 8 of the Labor Contract Law of the People’s Republic of China, the company has the right to know the employee’s basic information, which is directly relevant to the employee’s labor contract, and the employee is obliged to disclose such information honestly.

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In practice, some companies always intend to collect more personal information from job seekers, especially their marital status, fertility status, whether carrying an infectious disease, etc. which are like to cause privacy right dispute.

In addition, where the job seeker discloses such information to the company during the recruitment process but fails to be employed by the company due to their marital and fertility status or carrying an infectious disease, the company is likely exposed to the risk of employment discrimination.

Employee’s privacy right and employer’s employment management right

During the employment period, for the purpose of better office management, enhancing work efficiency, protecting company’s commercial secret, etc., the company may install monitoring equipment in the office area, background monitoring of office software used by employees, checking employees’ web browser data, tracking the moving trajectory of employees who are out of office for business, etc., in order to control and regulate employees’ behavior.

In addition, the company may secretly investigate the employee’s illness conditions where the company doubts the authenticity of the employee’s sick leave application.

For companies who require their employees to strictly keep confidential of company’s commercial secrets or to take non-competition responsibility, it is quite common for companies to seek and collect evidence by conducting secret investigation.

The above behavior is necessary for an employer to exercise its employment management right, which is also conducive to the handling of emergencies to some extent, such as recording employee’s illegal behavior or misconduct, the actual situation of work-related injury, etc.

However, such behavior of companies’ can lead to conflicts between the company’s employment management right and employee’s private right.

Industry blacklist

Developments in information technology now facilitate greater information sharing and communication between people and, also, between companies.

To ensure employment stability, companies usually prefer to choose suitable and compliant job seekers as their employees, and there is an “industry blacklist” shared between companies which keeps track of this.

Normally, except for certain regular information, such as employee’s name, gender, age, ID number, the blacklist always focuses on the employee’s resume, employment history, labor dispute they are involved in, etc., and such information will vaguely label the employees as “unqualified”.

This kind of industry blacklist could potentially cause privacy dispute and it seriously hinders employees from applying to a new job.

How should employers balance employment management and employee’s privacy rights?

The Civil Code came into effect January 1, 2021. As a newly enacted law, the Civil Code introduces innovation in system, style, and content – which will inevitably raise questions during their application due to the differences in practice.

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Therefore, a great deal of judicial interpretation is needed to fill in the details, and this pertains to the right to privacy section. At present, the company must understand the boundary between company’s employment management right and employee’s privacy right so that the company is able to reduce the potential for disputes on privacy rights.

In past judicial practice, the court mainly took into consideration the infringement’s influence and infringer’s subjective malice; however, after the promulgation of the Civil Code, the court will examine more aspects when it considers whether a behavior constitutes a privacy right infringement.

Article 998 of the Civil Code stipulates that, in determining an infringer’s civil liability for infringing upon personal rights other than the right to life, right to body, and right to health, such factors as the occupations of the infringer and the victim, scope of influence, degree of fault, as well as the purpose, method, and consequences of the act shall be considered. And this article is also applicable to privacy right infringement.

Based on this article, if there is an employment subordinate relationship between parties, the regular criteria in determining privacy right infringement are no longer applicable.

“Taken into consideration of the occupation of the infringer and the victim” could be interpretated as “taken into consideration of the occupational subordination relationship between the tort-feasor and the victim” to some extent. And under an employment subordinate relationship, it is not proper to unilaterally emphasize employers’ employment management right, or employee’s privacy rights.

Rather, both parties should realize there are boundaries to their rights and the employee shall waive certain privacy rights to ensure a balance between employer’s employment management rights and employee’s privacy right. Therefore, whether there is an employment subordinate relationship between parties must be taken into consideration when judging whether a behavior constitutes a privacy right infringement.

To be more specific, the below aspects should be considered when determining whether the company executes its employment management right in a way that is not infringing employee’s privacy right:

Legitimate

Whether it is “legitimate” is the most basic requirement for the company’s employment management rights. When making its internal management rules and policies, the company shall make sure such rules and policies are all compliant with current applicable laws and regulations.

For example, it is illegal to include content, such as “employee voluntarily waive his/her private rights”, in a company’s Staff Handbook. During the recruitment interview, questions about a female interviewee’s marital and birth status shall be strictly compliant with the Notice on Further Regulating Recruitment Practices to Promote Women’s Employment; physical examination on employee’s infectious disease antigen carriage condition shall comply with Opinions on Safeguarding the Employment Rights of Hepatitis B Surface Antigen Carriers.

Reasonable

“Reasonable” requires the company to cautiously exercise its employment management right. That the employee waives some of their rights does not entitle the company to expand its right without any limitations. “Reasonable” is also the corner stone of Article 998 of the Civil Code.

In practice, the company shall always keep “the minimum damage” as principle. For example, for collection of employee’s personal information, the company shall not ask the employee to disclose the information that does not closely relate to the employment, such as their marital condition, birth condition, financial status, etc.; when it comes to software usage monitoring, the monitoring scope shall be strictly limited with the software directly related to work; the surveillance equipment should only be installed in the office area and not in the nursing room, dressing room, or toilet, etc.

Consent

“Consent” means where a company’s employment management right may infringe an employee’s privacy right, the company shall give the employee a detailed explanation in advance and get the employee’s consent in writing.

The Civil Code gives more emphasis to the protection of privacy right, and it will have a profound impact on the employment management behavior of employers. For avoiding privacy right-related disputes to the greatest extent possible, the three-pronged principles of legitimacy, reasonableness, and consent should be strictly followed.

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