Added: Braylon Gamino - Date: 16.03.2022 17:22 - Views: 40196 - Clicks: 1106
You are using an outdated browser. Please upgrade your browser to improve your experience. Welcome to the Knowledge Portal. You can browse, search or filter our publications, seminars and webinars, multimedia and collections of curated content from across our global network. Explore our latest insights to keep abreast of key legal developments. Keep up to speed on legal themes and developments through our curated collections of key content. Although the Personal Data Protection Guidelines do not have force of law, they are considered by market participants to set out the best practice that is likely to be expected by Chinese regulators.
Following release of the App Rectification Announcement, various implementing rules have been issued. The Personal Data Protection Regulations have varying dates on which they entered into force.
New regulations relating to the internet and telecommunications industries came into effect on 1 September The updated Consumer Protection Law which includes new provisions on the collection and use of personal data including by online retail platforms came into effect on 15 March The App Rectification Announcement came into force on 23 January There is no specific national regulatory authority. Instead, competent authorities in some industries monitor the enforcement of the Personal Data Protection Regulations in their respective areas.
If the Cybersecurity Law is taken as a specific example, the introductory articles of this legislation state that it is regulated by the CAC, together with MIIT, the Ministry of Public Security and the relevant industry regulators for their specific industries. There are currently no rules in force requiring the notification or registration of the collection of personal data.
Under the Draft Data Management Measures, important data is defined to include any kind of data that, if divulged, may directly affect national security, economic security, social stability and public health and security such as large-scale population, genetic health, geography and mineral resources, etc. More details on the filing procedure and other implementing details for the Draft Data Management Measures are awaited. The territorial application of each individual Personal Data Protection Regulation that is applicable to a particular instance of collection and use of data varies.
The Personal Data Protection Regulations generally do not contain express provisions on their territorial effect. However, Personal Data Protection Regulations promulgated by a provincial authority would generally only apply to entities which collect and use personal data in that province. Any individual or institution collecting and using personal data in a province or sector to which a Personal Data Protection Regulation applies is required to comply with that Personal Data Protection Regulation.
Although the concept of controller does not have a statutory footing in China, controller is defined in the Personal Data Protection Guidelines to include any organisation or individual which has the power to determine the purpose, methods, etc. Both manual and electronic records are subject to the Personal Data Protection Regulations. In general, disclosure obligations under Chinese law override personal data protection laws. Disclosure of data may be required by government authorities and courts under different circumstances. Some key disclosure situations include: i entities and individuals are under an obligation to disclose information to regulators in regulatory investigations; ii the courts, public security organs and procuratorates may request entities and individuals involved in legal proceedings to give access to documents and information relating to such proceedings; iii the disclosure of government-held information if non-disclosure of which would have a material adverse impact on the public interest; and iv the disclosure of the identity of dishonest debtors in court enforcement proceedings.
There is no uniform definition of personal data in the Personal Data Protection Regulations. The scope of personal data is defined differently amongst the various Personal Data Protection Regulations. However, generally any information which is recorded in electronic or other form, which relates to an individual and which by itself or in combination with other information could disclose the identity of that individual or reflect the activities of that individual can be regarded as personal data including name, identity documentcorrespondence and contact information, address, and password, property status and whereabouts, etc.
The Personal Data Protection Guidelines include a similar definition of personal data. In addition, this set of guidelines refers to two of personal data: personal data and sensitive personal data see below. The Information Networks Provisions contain a list of common types of personal data to which it applies, including genes, medical and health check information, criminal record, family address and private activities. There are no uniform rules for processing personal data though there are similarities between the various laws set out below.
Under the Digital Data Protection Rule, before collecting and processing the digital personal data in its course of business, an entity must notify a data subject of, and obtain the consent from that data subject for: i the purpose for which the data will be used; ii the manner in which the data will be collected and used; and iii the scope of the data to be collected and used for the stated purpose and manner. The method of collection and use of digital personal data must also be disclosed and the collected digital personal data must be kept confidential and must not be divulged, modified, damaged, sold or illegally provided to others.
Similar obligations arise under the various sectorial Personal Data Protection Regulations. For example, in the banking sector, informed written consent must be obtained from a data subject before his or her personal data is provided to a processor and such provision must be necessary for the purpose of providing service to the data subject. In the internet and telecoms sector, companies must: i obtain the prior consent of the data subject before collecting and using their personal information; ii maintain collected data confidentiality; and iii not divulge, misuse, alter or sell such information or provide such information to other parties illegally.
The Consumer Protection Law includes similar requirements around the processing of personal data. In the credit reference sector, the written consent of a data subject is required if a third party asks for personal data of that data subject from a credit reference agency. Under the Personal Data Protection Guidelines, consent of a data subject is required in order to collect, use or disclose his or her personal data, except where information has been processed such that the identity of the data subject cannot be distinguished and the information cannot be restored.
There are no uniform formalities in the Personal Data Protection Regulations.
However, the Personal Data Protection Regulations relating to the credit reference sector stipulate that consent of a data subject must be in writing. The Personal Data Protection Regulations relating to the banking sector provide that the consent of a data subject must be obtained in writing if a financial institution provides the personal data of that data subject to a third party.
There are no explicit formalities for obtaining consent under the Personal Data Protection Guidelines. is someone of 14 years old or less. Consent from in relation to processing of his or her personal data will only be valid if authorised by a parent. Under the Personal Data Protection Guidelines, the personal data of children is treated as sensitive personal data so the additional obligations under those guidelines applicable to sensitive personal data would apply to the processing of information relating to a data subject aged 14 years old or less.
There are also special rules protecting the criminal records of juveniles under the age of 18 see below. Are there any special rules when processing personal data about employees? There are no specific rules regulating the processing of personal data about employees. There are, however, restrictions relating to collection of personal data of employees. Under the Employment Contract Law, an employer is entitled to assess the basic situation of an employee related to his or her employment contract, and the employee must provide information as requested accordingly.
In addition, in February nine central governmental authorities issued a circular promoting the employment of females and putting an express ban on gender discrimination during recruitment. Under this circular, during job interview, an employer is not permitted to ask a female candidate about her marital status or the circumstances relating to childbirth or children; Similarly, pregnancy tests are now prohibited as part of any pre-employment medical check. The Personal Data Protection Regulations generally do not explicitly distinguish between personal data and the sensitive personal data.
The Personal Data Protection Guidelines define sensitive personal data as personal information of which the leakage, illegal provision or abuse may endanger the safety of life and property or could easily damage personal reputation or physical and mental health, or discriminatory treatment could easily be caused.
Sensitive personal data includes identity card s, personal biometric information, bank s, communication records and content, property information, credit information, location records, accommodation information, health and physiological information, and transaction information. This is broader than the standard types of sensitive personal data. Generally, there are no additional rules in the Personal Data Protection Regulations. However, the regulations relating to the credit reference sector prohibit credit reference agencies from collecting certain information, such as information about religious beliefs, genes, fingerprints, blood types or medical histories of any individuals.
Similarly, in the banking sector, financial institutions in China are recommended to assess the level of sensitivity of their personal financial data and observe different practices in respect of the collection and processing of each level of data to ensure adequate protection where needed.
The Personal Data Protection Guidelines state that the explicit consent of the data subject should be obtained when processing sensitive personal data. For a core business function, the controller must explain to a data subject about the core business function and what sensitive personal data will be collected, while permitting the data subject to withhold his or her sensitive personal data or his or her consent to it automatically being collected, after being explicitly informed by the controller of the consequences of his or her decision.
Where, on the other hand, a supplemental business function is to be provided, the controller must explain what sensitive personal data will be collected and must allow the data subject to withhold his or her sensitive personal data or his or her consent to it being automatically collected.
The controller may cease providing the supplemental business function if the data subject withholds his or her data or consent to collection, but this cannot be the reason for which the controller stops providing its core business functions or guaranteeing the same service quality. Are there additional rules for processing information about criminal offences? There are no specific rules regulating the processing of information about criminal offences. However, there are special rules requiring that the criminal records of juveniles under 18 years old who commit a criminal offence and are sentenced to imprisonment for 5 years or less or receive lighter penalties.
These records must be kept strictly confidential and may not be provided to any entity or individual unless such provision is required according to applicable law. In addition, any individual who has received a criminal penalty must actively report such information when enlisted or employed.
Juveniles under 18 years old who commit a criminal offence, and are sentenced to imprisonment for 5 years or less or receive lighter penalties, are exempted from such reporting obligations. Are there any formalities to obtain consent to process sensitive personal data? The Personal Data Protection Guidelines specify that the explicit consent of the data subject should be obtained before processing sensitive personal data.
This requires that the data subject must make an authorisation through a written statement or an affirmative action on his or her own initiative in respect of the specific processing of his or her personal information. The Personal Data Protection Regulations do not mandatorily require the appointment of an officer in charge of data protection specifically. That said, the Cybersecurity Law requires network operators to appoint a cybersecurity officer whose duties would include protecting the security of personal data. Although it is only best practice guidance, the Personal Data Protection Guidelines suggest that a data protection officer should be appointed to supervise personal data protection processes where a controller either: i has a principal business that involves processing of personal data and an aggregate of employees in excess of ; or ii processes personal data of more thanindividuals or expects to process personal data of more thanindividuals within 12 months.
In addition, although only in draft form at this time, the Draft Data Management Measures propose that network operators which collect important data or sensitive personal data for the purpose of business operation must, as a matter of law, appoint a data protection officer. Although the Cybersecurity Law does not provide for specific duties of the cybersecurity officer, it is expected that the duties of a cybersecurity officer would include protecting the security of personal data.
Under the Draft Data Management Measures, if enacted in their current form, the data protection officer should have management work experience and professional knowledge of data security to allow him or her to work with senior management, formulate data protection plans, organise risk assessments, handle and report security incidents, and deal with complaints from data subjects.
The Cybersecurity Law provides a general obligation on network operators to formulate internal security management systems and operating procedures. In addition, CII operators are required to provide regular cybersecurity education sessions, technical training and carry out regular skills assessments on relevant staff. There is, however, no specific ability obligation in respect of data protection only. As mentioned above, under the Cybersecurity Law, a CII operator must conduct a security assessment prior to transferring personal data and important data collected and generated during its operation in China.
In addition, a CII operator must conduct an examination and assessment of its cybersecurity systems and related risks not just in respect of data protection at least once each year. The of this assessment must be submitted to the relevant regulators. See also below in respect of the restrictions on transfers to third countries. There are no uniform rules about providing privacy notices to data subjects in the Personal Data Protection Regulations.
However, in the banking sector, informed consent must be obtained from a data subject before his or her personal data is provided to a processor.The Dark Side Of Dubai They Don't Want You To See Is Shocking
More generally under the Cybersecurity Law, when network operators collect personal data, they must clearly state the purpose, means and scope of their data collection to data subjects at the time of collection and cannot collect unnecessary personal data or use the personal data for a purpose other than the stated purpose. The Consumer Protection Law imposes similar requirements that businesses must provide consumers with information about the purpose, means and scope of their data collection. The Personal Data Protection Guidelines provide more detailed guidance on privacy notices, including recommendations as to the content to be included.
However, in the credit reference sector, a data subject is entitled to ask a credit reference agency to provide his or her own personal data, and has a right to acquire his or her own credit report from the credit reference agency for free twice a year. Under the Personal Data Protection Guidelines, it is recommended that data subjects have a right, by making a written request to the controllerto access copies of their personal data.Visual Snow Initiative's Personal Stories Series: #1 - Sierra Domb
The initial request is free, though a charge can be made for subsequent requests. The response must be provided within 30 days or such other time limit prescribed by law, although the Personal Data Protection Guidelines do contain a range of exemptions to the obligation to respond to these access requests. There is no specific data portability right under Chinese law. However, as a matter of best practice under the Personal Data Protection Guidelines, a data subject may make a request to have his or her personal data transferred to a third party where technically feasible to do so.
Under the Digital Data Protection Rule and certain of the Personal Data Protection Regulations relating to internet service providers, a data subject may request the person or institution in charge of the processing to rectify, block or delete personal data. Under the Cybersecurity Law, a data subject may request a network operator to delete his or her personal data where it is collected or used in violation of law, regulation or agreements with him or her.
The Personal Data Protection Guidelines grant similar rights to data subjects. In addition, in accordance with the Chinese Tort Liability Law, where an internet user engages in tortious conduct through internet services, the affected data subject has the right to notify the internet service provider to take necessary actions such as deleting or blocking content, breaking links, etc.
Where the internet service provider fails to take necessary action in a timely manner after being informed, it will be tly and severally liable with the internet user with regard to the extended damages suffered by the infringed data subject.Sierra Shanghai personals
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