When your right to privacy is being infringed, do you really know it?

The incident

Late on 31 May 2019 a man at Xidan Joy City in Beijing was caught on the spot photographing up a woman's skirt with his mobile phone. At about eleven that night, when the incident occurred, only the man, the victim and the victim's boyfriend were on the escalator. The man stood behind the victim in a wide stance with his phone resting on his knee and the camera facing upwards, and the position caught the boyfriend's attention. The boyfriend then saw that he was filming up the victim's skirt, seized him and demanded: "Why are you filming? Why is your phone so close?" The man denied it, saying that he had not filmed anything, that he had done nothing and that there was nothing on his phone, that he was merely going upstairs and that the surveillance footage could be checked. Staff of the mall then came, heard both accounts and called the police.

At the Erlonglu police station of the Xicheng district branch of the Beijing public security bureau, near Xidan Joy City, the police took a statement from the victim. Although the surveillance footage from the mall was not ideal, the officers examined the man's phone and found video that he had indeed filmed covertly, which was enough to serve as evidence. The man has been placed under administrative detention for seven days.

Legal analysis

In China, peeping and covert filming not only infringe another person's privacy but are unlawful. A victim may report the matter to the public security authorities and ask them to investigate.

Article 42 of the Law on Penalties for Administration of Public Security provides that a person who commits any of the following acts is detained for not more than five days or fined not more than 500 yuan, and where the circumstances are relatively serious is detained for not less than five and not more than ten days and may also be fined not more than 500 yuan:

(1) writing a letter of intimidation or threatening another person's personal safety by other means;

(2) publicly insulting another person, or fabricating facts to defame another person;

(3) fabricating facts to bring a false accusation against another person in the hope of subjecting him to criminal prosecution or to a public security penalty;

(4) threatening, insulting, beating or retaliating against a witness or a close relative of a witness;

(5) repeatedly sending obscene, insulting, intimidating or other messages that interfere with another person's normal life;

(6) peeping at, covertly filming, secretly recording or disseminating another person's private matters.

In the case above the police established that the video of another person's private matters on the man's phone had plainly been filmed covertly by him. The police accordingly detained him for seven days under Article 42 of the Law on Penalties for Administration of Public Security.

Privacy in general

Nor is this an isolated case. On 25 May 2019 a similar incident occurred on Line 1 of the Chengdu metro, where a man who filmed up a woman's skirt was arrested by the police and given seven days' administrative detention and a fine of 500 yuan. There are plainly many other intrusions on personal privacy in daily life, but is it really clear what rights privacy comprises?

The right to privacy comprises the following rights.

1. The right to freedom of personal life

The holder of the right may, by his own will, engage or not engage in an activity that is unrelated to the public interest or harmless to it, free from the interference, disruption or control of others.

2. The right to keep information confidential

Information about a person's life includes all personal information and data, such as height, weight, a woman's measurements, medical records, physical defects, state of health, life experience, financial position, marriage and relationships, family, social connections, hobbies, beliefs and psychological traits. The holder of the right may forbid others to use such information unlawfully: the private parts of a person's body or a diary, for example, may not be peeped at, and a person's financial position, social connections and other private matters that are not otherwise known or disclosed may not be made public without his consent.

3. The right to the confidentiality of personal correspondence

The holder of the right may keep confidential the content of personal letters, telegrams, telephone calls and faxes and of his conversations, and may forbid others to intercept or obtain them unlawfully. The development of the privacy regime is to a large extent bound up with the advance of modern communications: the rapid development of information processing and transmission technology makes the content of personal correspondence easy to intercept or obtain, and safeguarding the security of personal correspondence has therefore become an important element of the right to privacy.

4. The right to use one's privacy

The holder of the right may, in accordance with law and by his own will, make use of his privacy in activities that satisfy his own needs, such as using information about his life to write an autobiography, or allowing his image or figure to be used for a painting or a photograph. Such activities may not be unlawfully interfered with, but privacy may not be used in breach of mandatory legal provisions or contrary to public order and good morals: the right may not be abused. Making obscene material using the private parts of one's own body, for example, is an unlawful use of privacy and therefore unlawful conduct.

Article 110 of the General Provisions of the Civil Law of the People's Republic of China provides that a natural person enjoys the rights to life, to body, to health, to name, to portrait, to reputation, to honour, to privacy, to marriage autonomy and other rights. The law also protects personal dignity. Where the right to privacy is infringed, therefore, the law may be taken up to protect one's lawful rights and interests in accordance with law: the infringer may be required to stop the infringement, to make an apology and to compensate the loss, and judicial protection may be sought.