The Historical and Cultural Background of Internet Privacy in China

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中国网络隐私的历史和文化背景

 

一般认为,在中国传统社会和文化中,西方意义上的隐私权并不存在,但我们并不能因此就说中国人完全没有隐私观念。如果我们仔细考察一下中国的传统文化,仍然可以很清楚地看到,中国人不仅有隐私观念,而且在一定程度上还是比较重视隐私,只不过中国人的隐私观念与西方人的隐私观念在含义和内容方面有所不同而已。

 

中国从古代开始,就逐渐形成了严格受“三纲五常”( 三纲五常: “三纲”即“君为臣纲”、“父为子纲”、“夫为妻纲”;“五常”是指“仁、义、礼、智、信”)限制的私人生活模式。在这种生活模式下,人们不仅生活在严格的社会等级制度中,而且私人生活是绝对不能登大雅之堂的。

 

“在中国古代社会,我们找不到类似于古罗马公法与私法一类的区别.却只能看到某种包罗万象的单一规范。这种规范,便是连接家国于一的礼。”礼的主要内容就是上述的“三纲五常”。

 

杨国枢等人指出,“家庭是中国家族主义取向的核心。在中国社会,是家庭而不是个人,是基本的组织和功能单位”(这句话是从英文原文直接引用的,不必改动)。中国人的公私观念不是指集体与个人的关系,而是指公家与自家的关系。因此,个人隐私就让位于家族隐私,而家族隐私可以看成是一种特殊的群体隐私或共同隐私。

 

何道宽进一步延伸了家庭隐私的概念,认为群体隐私的观念依然是解读中国文化的一把万能钥匙。中国人有独特的隐私观念,即看重群体隐私。

 

在中国历史上,隐私曾被认为是“阴私”,是指涉及不正当性行为,有关强奸、侮辱、猥亵妇女或者其他有伤风化的事情。在传统的中国社会,缺乏积极意义上的隐私观念,这种情况甚至持续到1949年中华人民共和国成立后很长一段时间

 

建国后,在计划经济体制下,国家权力对于公民私人生活的安排“全面而周到”——从找工作到结婚、离婚等一切——减少了人们对隐私权的需求。张新宝指出,据统计,1987年以前,我国大陆未曾发表过有关隐私权研究的文章;1988年以前,我国大陆的立法文件和最高人民法院的司法解释未曾使用过“隐私”这一概念。作如此的梳理和结论十分必要,但非常困难甚至有些危险,因为我们很难穷尽所有的相关研究。对此,笔者的结论是从1981年开始,已经有关于隐私的学术论文出现了,因为笔者2013年1月31日通过中国知网数据库,查到两篇相关论文。

 

虽然我国公民互相不尊重隐私的现象屡有发生,但直到1987年3月,我国法院才审理了第一起类似案件。纠纷发生在上海某商店两位营业员之间,其中一位当众辱骂另一位“生活作风有问题”。因此,可以说中国人直到那时,才意识到他们自己的隐私权应该受到保护。

 

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//In the first in a series of posts on Internet Privacy in China, CGCS visiting scholar Jinghong Xu examines a recent 12-article Decision on Strengthening Online Information Protection adopted by Chinese lawmakers. Having the same legal weight as law, the Standing Committee of the National People’s Congress approved the Decision December 28th 2012. Regarded as an important milestone in Chinese media law and the regulation of Internet privacy, the main purpose of the Decision was to enhance the protection of personal information online and safeguard public interests.

It is generally acknowledged that there is an absence of what the West would describe as the “right to privacy” in traditional Chinese society and culture. This does not mean, however, that the Chinese have no concept of a right to privacy at all. If we trace Chinese history in detail, we actually find that to some extent, the Chinese people do care about the right to privacy, but operate with a different understanding and definition than that of “Western” privacy.

From ancient times, the personal lifestyle of the Chinese people has formed gradually under the restrictions of “the Three Cardinal Guides and the Five Constant Virtues” as specified in the feudal ethical code. The ‘Three Cardinal Guides’ refers a scenario in which a ruler guides their subject, father guides his son and husband guides his wife. Conversely, the Five Constant Virtues refer to benevolence, righteousness, propriety, knowledge and sincerity. Thus, the Chinese people functioned in a society with a very strict social hierarchy which accounted little for individual autonomy and privacy.

Zhiping Liang (1997) once said, “In ancient Chinese society, we could not find a similar distinction between the public law and private law as in ancient Rome, but could only find the Single Standard “Li”, which governed almost everything and linked the family and the country.” Li’s key component is a combination of the above mentioned “Three Cardinal Guides and the Five Constant Virtues”.

Kuo-Shu Yang (1995) pointed out, “Chinese familism constitutes the core of familistic orientation. In Chinese society, it is the family, rather than the individual, that is the basic structural and functional unit”. The Chinese concept of “public” and “private” is more about the relationship between the “public” and the “family”, and not so much between “public” and the “individual”. Thus, as far as traditional Chinese understanding goes, the privacy of an individual is inferior to the privacy of the whole family, the latter being a special kind of “group privacy or collective privacy” for the family unit as a whole.

Daokuan He (1996) further expanded on the concept of “family privacy” by advocating that the concept of such a “collective family privacy” is the key to understanding traditional Chinese culture. Paying more attention to “group privacy” than “individual privacy” is the main characteristic of the Chinese concept of privacy.

Historically, the Chinese have regarded privacy as something “shameful” or “embarrassing”, which may have involved safeguarding secrets around actions and information considered indecent (such as rape, molestation, and so on). Thus we may say that there was a lack of positive connotation for privacy in traditional Chinese society at all, even long after the founding of the current People’s Republic of China in 1949.

Under a Planned Economy System after the founding of the PRC, the Chines government arranged an individual citizen’s “private” life comprehensively and in great detail; from finding a job to getting married or getting divorced, etc., which seemingly diminished the need for privacy among the people. According to Xinbao Zhang (2004), there were no academic or research articles on privacy in mainland China before 1987 and the provisions of law never addressed the concept of privacy before 1988.

It is necessary, however dangerous, to make this kind of conclusion for we can hardly consult all the related documents. For instance, upon utilizing the China National Knowledge Infrastructure, two relevant papers surfaced – Hancheng He’s work on privacy as well as Jianhua Li’s– both of which were published in 1981.

There occurred, of course, repeated infringement upon the right to privacy leading up until 1987, but we may say that the Chinese people did not turn to legal weapon to protect the right to privacy before that year. In March of 1987, the first case concerning the right to privacy was brought to court.

The dispute happened in Shanghai between two shop employees, one of which publicly accused the other of leading life full of problems, laden with sexual liaisons and ethical misconducts (Yunxiang, 1995).

We may say that the Chinese people hadn’t realized they have something concerning the right to privacy which should be protected by law until then. In the next installment of this series, we explore this groundbreaking case and examine the legislative history of the right to privacy in China.

References

Daokuan He. 1996. On the Chinese Concept of Privacy. Journal of Shenzhen University (Humanities & Social Sciences). 13(4), p. 83. (In Chinese.)

Hancheng He. 1981. Case of marriage does not equal to case involving individual’s shameful or embarrassing private affairs. People’s Judicature. 5. p. 18. (In Chinese.)

Jianhua Li. 1981. What kinds of cases are cases of privacy?. Modern Law Science. 4. p. 61. (In Chinese.)

Kuo-Shu Yang. 1995. Chinese social orientation: An integrative analysis. In Tsung-Yi Lin, Wen-Shing Tseng, Eng-Kung Yeh (Eds.), Chinese societies and mental health. (p. 22). Hong Kong: Oxford University Press.

Xinbao Zhang. 2004. Legal protection of the right to privacy. (second edition). (p. 2). Beijing: The Masses Press. (In Chinese.)

Yunxiang. 1995. “Vail” should not be lifted: Reports on the right to privacy of the Chinese people. Qiqihaer Social Sciences. 2, p. 22. (In Chinese.)

Zhiping Liang. 1997. Seeking the harmony of natural order: Chinese traditional legal culture study. (p. 19). Beijing: China University of Political Science and Law Press. (In Chinese.)

//Jinghong Xu is an Associate Professor of Communication at the School of Digital Media and Design Arts, Beijing University of Beijing University of Posts and Telecommunications (BUPT). He is a Fulbright Visiting Scholar at the Center for Global Communications Studies of Annenberg School for Communication, at the University of Pennsylvania for the 2012-2013 academic year. Xu also serves as the vice-director of the interdisciplinary Center of Social Network Information Management and Service, BUPT and a post-doctoral candidate at the Institute of Law, at the Chinese Academy of Social Sciences.

He is a member of International Communication Association (ICA), the World Association for Public Opinion Research (WAPOR) and a Reviewer of the Chinese Social Sciences Citation Index (CSSCI) journal Library and Information Service. His research focuses on new media communication, media ethics, media policy and law, cyber culture, information law and Internet law, especially Internet Governance, online privacy, online public opinion and digital copyright, etc.

 He holds a BA of English and as well as a MA of Journalism and Ph.D. of Communication. He has been involved in many funded projects in varying capacities as principal investigator, co-investigator and collaborator and has published a book and more then 50 articles. He can be reached via email.

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