How to defend human rights when staying in a mainland Chinese hotel? Applicable provisions of the Civil Code

Reporter : Chen Huijuan / Editor : Zhang Kaixin / Publisher : Guangming Daily 

Ref : http://www.chinanews.com/gn/2020/08-27/9275224.shtml / Direct translation

　　 How to defend your rights while staying in a hotel

　　 [Questions and Answers to the Civil Code · Explaining by Case]

　　●Keywords

　　 Personality interests Privacy protection

　　●Overview

　　 With the development of science and technology, the big and bulky camera has become a pinhole invisible camera that makes people unpredictable. Many people are unknowingly violated their personal privacy, and there are frequent incidents of sneak shots in hotels. In order to better protect the people's right to privacy, in response to various prominent problems in the practice of privacy rights, the Civil Code of our country has made special provisions on the right to privacy on the basis of current legal provisions. In Chapter 6 "Privacy and Personal Information Protection" of the Personal Rights of the Civil Code, not only privacy is clearly defined, but also the types of behaviors that violate privacy rights are prohibited.

　　●Case

Since July 2019, a man from Fuzhou City, Fujian Province, Mr. Chen, installed 4 sets of pinhole camera equipment purchased online in 4 hotel rooms, and used the App to remotely watch, record and store private videos of others. More than 600 victims were involved people. At present, related equipment has been dismantled and Chen has been arrested by the public security organs. The Procuratorate of Gulou District, Fuzhou City, Fujian Province prosecuted Chen for illegally using special equipment for stealing photos.

　　 ● Law

　　 Except as otherwise provided by law or with the express consent of the right holder, no organization or individual may perform the following actions:

　　 (1) Intrusion into the private life of others through telephone, text messages, instant messaging tools, emails, leaflets, etc.;

　　 (2) Entering, filming, and peeking into private spaces such as other people's houses and hotel rooms;

　　 (3) Filming, spying, wiretapping, and publicizing the private activities of others;

　　 (4) Shooting and peeking into the private parts of others' bodies;

　　(5) Handling the private information of others;

　　(6) Infringe on the privacy of others in other ways.

　　●Experts

　　Pi Jianlong (Member of the CPPCC National Committee, Director of Beijing Jintai Law Firm)

　　Clarify the right to privacy and fully respect the interests of personality

　　 The so-called right of privacy refers to the right of a natural person to be protected from infringement with regard to his privacy, which is a specific right of personality. The right to privacy is a particularly important right of people. Losing privacy means losing our integrity as a person.

　　 Before the promulgation of the Civil Code, my country’s existing laws and regulations did not make specific and clear legal provisions on personal privacy. The protection of the right to privacy can only be applied to the provisions of the General Principles of Civil Law and Tort Liability Law. The Tort Liability Law only mentions the protection of the right to privacy, but it is too general and unclear, and does not specify the specific content of the right to privacy. For acts that violate the right to privacy, the only civil way to obtain monetary compensation is to seek compensation for mental damage. According to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Compensation for Mental Damage in Civil Torts", compensation for mental damage is based on serious consequences. However, in actual cases, the direct evidence recognized by the court that the infringer can provide for recourse for mental damages is very limited. Even if the evidence is presented, the case compensation generally does not exceed 10,000 yuan, which makes it difficult to balance the cost of litigation and greatly reduces the infringement. Cost is difficult to deter and punish infringers.

　　 For the first time, the Civil Code of our country made clear provisions on the protection of personal privacy. Chapter 6 "Privacy and Personal Information Protection" of the Personal Rights of the Civil Code declares that natural persons enjoy the right to privacy, clarifies the connotation of the right to privacy, and lists specific manifestations of infringement of the right to privacy. Article 1032 of the Civil Code stipulates that natural persons have the right to privacy. No organization or individual may infringe the privacy rights of others by spying, harassing, divulging, disclosing, etc. Privacy is the tranquility of a natural person's private life and the private space, private activities, and private information that others do not want to know. In conjunction with Article 1033 mentioned above, although there are only two articles, the privacy rights are very complete. The clear regulation of the right to privacy in the Civil Code means that our law fully respects the personal interests of citizens and raises the protection of "human dignity" to a whole new level. In particular, the provisions of Article 1033 of the Civil Code are not only conducive to court adjudication of cases, but also conducive to providing guidance for the public to make people aware of their behavior boundaries.

　　 These privacy provisions provide strong legal support for privacy protection. If you go to the hotel and find that you have been photographed secretly, you can directly sue the infringement for compensation on this basis.

　　 In the case of a sneak shot while staying in a hotel, the provisions of the Civil Code can generally be applied. However, for serious violations of privacy, the relevant provisions of the Criminal Law shall be convicted and punished. For example: secretly photographed and secretly recorded content involving citizens’ identity card information, including information such as name, age, identity, household registration location, etc., and sold to cause disclosure, constitutes a crime of infringement of citizens’ information; illegal use of special equipment for wiretapping and photo theft constitutes illegal The crime of using special equipment for wiretapping and photo stealing; if the suspect's secretly recorded video includes a sex video and disseminates it, it may also constitute the crime of disseminating obscene materials. As the last line of defense to maintain social fairness and justice, the criminal law has coercive and deterrent power and has a very good effect on combating violations of privacy. Therefore, the criminal law and the civil code should be combined to better protect the privacy of citizens.