The Emergence of Privacy Rights in China

2020. This paper outlines the evolution of privacy in China and attempts to explain what caused the emergence of modern privacy rights in China at the end of the 20th century.

_{Cropped detail from Qiu Ying, Woman on Bridge – Woman at Window, Late 19th century. The Barnes Foundation, BF2551. Public domain.}

Introduction

Today, with the steady growth of new and powerful surveillance technologies, the issue of privacy has become particularly salient. What is it? How far does it reach? Who is responsible for protecting it? All these are questions which are increasingly forced upon populations and policymakers. While the interpretations of and prescriptions for privacy vary, all believe that it is an issue which must be dealt with. How the question of privacy arises and is approached cannot be studied separately from particular social and political environments. The topic of this paper is the status of privacy in contemporary China and how China’s social and political environment has impacted the approach towards privacy in China. It seeks to address the question of why the issue of privacy has not been a legal issue in China until 1988, whereas it arose in its modern form in the United States about a hundred years earlier (1890). In order to address the question, Chinese attitudes to privacy historically will be considered. It is a question that has been addressed before, but given the complexity of the issue, there remains great uncertainty. For privacy is not merely a legal construct that authorities may choose to regard or disregard, it is a matter which concerns our most intimate spheres, however they may be defined.

This paper suggests certain reasons for the status of privacy in China and its recent emergence in public,[1] but it does not want to imply that anything definite have or can be said on the matter. The paper is structured as follows: after a review of existing research and a theoretical discussion, it begins by discussing the approach to privacy in traditional China, that is pre-1913, and what influenced this approach, it then briefly considers the period leading up to the triumph of the CPC before addressing the status of privacy in the early communist period. Consequently, it discusses the post-reform period and the legal protections that privacy has come to enjoy, mostly indirectly. Finally, the paper attempts to analyse possible reasons for the current status of privacy, by references to both history and recent developments.

Existing research and theory

The issue of privacy in China is a subject which has been approached from various angles. I will only refer to the English literature that I have come across on the subject. For example, the edited volume of Bonnie S. McDougall and Anders Hansson titled Chinese Concepts of Privacy deals with Chinese privacy throughout history as reflected in various sources, but principally literary sources. This evidence suggests that there has been an “awareness of privacy go back as least as early as the Warring States period.”[2] Discussing the literature on the subject, she finds no coherent approach to privacy, and that it is often treated indirectly, while it is acknowledged to exist. She writes that the “complexity of privacy terminology is a reflection of the diversity of the meanings and values attached to privacy.”[3] It is often written that the Chinese concept of privacy, yinsi, is unequivocally negative, but she claims that it has at times had different and more positive connotations. She criticizes approaches that do not allow for change over time or treat China as a homogenous geographical space.[4]

In reviewing the work of other authors, she notes many interesting findings about Chinese views of privacy. These findings include how Chinese noble women’s feet and faces were considered private and not for public view,[5] that apparently the “relationship between women’s private and public speech was a topic of a lengthy scholarly debate,”[6] and that the unit of privacy was family and not the individual.[7] Interestingly, she notes that “there is no single Chinese concept of privacy (just as there is no single Western/British/English/Geordie concept of privacy).”[8] McDougall and Hansson’s book provides interesting approaches to privacy in China, but they do not address the specific aspect of privacy that this paper addresses, namely its legal status.

Another account of privacy in traditional China is that of the political sociologist Barrington Moore, Jr. In Privacy: Studies in Social and Cultural History, he discusses how the three main Chinese philosophical schools viewed the private vs. the public. Norman Stockman has summarized his account thus:

the Legalists, advocates of a strong state, made a sharp distinction between the public and the private, and sought to subordinate the private to the public; the Daoists advocated individual freedom and privacy and resisted the subordination of the individual to the public demands of the state; for the Confucians, the distinction between the public and private, although known, was not a very significant issue.[9]

Furthermore, Moore argues that the rise of “commerce and industry” and democracy appear to be conditions favourable to the protection of privacy, but that the “desire for privacy” seems to be a “panhuman trait.”[10]

The most prominent (English-writing) expert on privacy and its legal status in China is Hao Wang. In one of his articles, he writes that despite some “indirect protection” offered by Confucian values and li (ritual conduct), privacy as we know it today was not truly protected by the law or social custom.[11] He attributes this to three principal reasons: the “absolute privilege of the ruling class,” the “traditional attitude to civil disputes,” which emphasized mediation and conciliation and discouraged confrontation, and the “traditional sense of face,” which rendered public confrontation regarding matters of privacy extremely unpleasant and therefore unlikely.

Furthermore, he writes that the Chinese concept of privacy, yinsi, has negative connotations, and that people are therefore reluctant to view it at as a potential right. Nevertheless, following the reform and opening up, there has gradually emerged an awareness that privacy is something which ought to be a right of its own, not merely an accessory part of the right to one’s reputation. Hao Wang presents current legislation which protects privacy, and finds that it is rather scattered and that privacy has yet to be fully recognized in its own right. It is on the same path as Hao Wang that I intend to tread in this paper, developing some of his arguments and in other cases suggesting alternatives.

My conceptual point of departure, like that of many scholars writing on the right of privacy,[12] is the landmark article written by Samuel D. Warren and Louis D. Brandeis, published in the Harvard Law Review in 1890.[13] This article suggested an altogether novel right, the right of privacy. They argued that privacy, as they understood it, had been an implicit underlying concern in multiple English and American court cases that alleged to protect “reputation,” “copyright,” the sanctity of contracts etc. For them, privacy was different from the other rights which indirectly protected it. For example, they wrote that laws protecting one from damage to reputation merely concerned matters which,

[however] widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellowmen, – the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action.[14]

As they point out, the right to one’s reputation is directly related to how information about one affects one’s regard in the eyes of others, thus precluding wrongdoing if intimate (private) information is obtained or published without any harm to the victim’s reputation. They suggested that

The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.[15]

Today, in addition to “publication,” we would add “storage, use, sale, and collection.” Furthermore, the right is today considered not merely to apply to the “personal writings and all other personal productions,” but all sorts of personal data, ranging from biometrics to digital information. Finally, Warren and Brandeis’ description of privacy depends upon a sharp distinction between the private and public. Those private matters which they argue ought be protected by law stand in contrast to matters of “legitimate connection with his fitness for a public office which he seeks or for which he is suggested,” or any matters which pertain to “any act done by him in a public or quasi public capacity.”[16]

Their conception of privacy, although later modified, is largely what has prevailed, even among Chinese scholars seeking recognition for the right to privacy. For example, Hao Wang writes that Lixin Yang thinks that “the right to privacy is a right to keep insulated from publicity, enjoyed by natural persons only, under which they can dominate their personal information, private space and private activities.”[17] Wang also cites Liming Wang, a civil law professor, who suggests that “the right to privacy is a right of personality, enjoyed by a natural person, and he/she can dispose of all personal information, private activities and private areas which belong only to the person and have no relation to public interests.”[18] Although there is continual talk of the difficulties of defining and delimiting privacy, I believe these concerns are somewhat exaggerated, for I have yet to see any discussion of the legal protection of privacy which departs substantially from the framework provided by Warren and Brandeis.[19]

Another theoretical assertion which this paper seeks to justify is that privacy as a legal right is intimately connected with the rise of a “public.” What is meant by this is that before privacy can appear as something akin to a general right, the “public” must also appear as something general. In many European languages, such as English, French, Norwegian, Spanish etc., this distinction is contained in the terms public and private, which are derived from Latin. Private meant “set apart, belonging to oneself (not to the state), peculiar, personal,” used in contrast to publicus. [20] Its counterpart, the public, derives from the word populus and means “of the people; of the state…”[21] Thus, the public is that which concerns the people as a political community with common interests, the private is that which pertains to individual human beings and personal interests.

However, legal recognition does not follow automatically from the Latin-derived terminology, and it is a question yet to be addressed what does in fact lead to legal recognition. The Chinese language has also such a distinction. As McDougall writes, “[as] in English, the Chinese word si commonly occurs as half of a pair with gong [public]; in this context, it refers to a private sphere of activity and/or private interests.”[22] While she argues that the normative connotations associated with the “private” has changed over time, most scholars suggest that the term yinsi, which tends to be the translation of privacy, is negatively viewed. Guobin Zhu, writing on the status of privacy in China, noted that “privacy remains a strange concept for many in China…” He argued that

[people] have had no clear idea how to distinguish the difference between a shameful secret (yinsi) and privacy (yinsi). These two words were very often used alternately for their pronunciation is almost the same except for a slight difference of the tones. Even in a widely used Chinese dictionary, ‘shameful secret’ is defined as a ‘hidden bad thing’, usually in connection with sexual affairs; while ‘privacy’ is defined as a ‘personal thing people do not wish to tell others or to disclose in public’.[23]

The negative connotations associated with the term yinsi makes the idea of privacy in China somewhat different from its Western counterpart.

This paper will offer three main reasons for the emergence of the right of privacy in China in the late 1980s, all of which are based on different perspectives. The first reason is the adoption by China of the capitalist mode of production after the reforms in the late 1970s. This argument is based on a reading of the historical-sociological works of Karl Marx, Justin Rosenberg, and Barrington Moore Jr. Based on their works I will argue that the crystallization of public/private distinction is brought about by capitalist production, and that the concern with individual private freedom is something which is strengthened under capitalist principles of production.

The second reason is the emergence of technology that allows for increased violations of what people often consider their private or intimate spheres. The logic of this argument is based on the common-sense understanding that Warren and Brandeis expressed when they argued that modern technology posed new and severe threats to people’s “right to be left alone.” The third reason is the norms prevalent in China. I draw upon the work done by Tianjian Shi on political culture in China, and I will argue that cultural norms may impact how people view privacy.

Traditional China

China’s traditional legal system is based on a tenuous marriage of two schools of thought, Legalism and Confucianism. The Legalists, who have had a long-lasting influence and were prominent during China’s reunification under the Qin dynasty, believe that human beings are corrupt or bad and that strict laws and punishments are therefore necessary to maintain social order. They advocated centralization of state power in the hands of the Emperor, and taught rulers how to strengthen the state.[24] Han Feizi (c. 280 – 233 BC), one of the leading Legalist thinkers, advised the ruler to do as follows:

Stick to your objectives and examine the results to see how they match; take hold of the handles of government carefully and grip them tightly. Destroy all hope, smash all intention of wresting them from you; allow no man to covet them.[25]

From the Han dynasty onwards, however, the harshness of Legalism was softened by Confucian morality. Confucius and his later disciples and followers believed that behaviour and social relations, ranging from familial to governmental relations, should all be governed by norms and rituals. Hao Wang writes that Confucius collected and organized what had been the “norms governing the conduct of royal family members and nobles in China,”[26] into a moral system that encourages people to cultivate morality and observe proper conduct. A key term is li, meaning rituals, rules, and etiquette, and if all abide by li, it is believed that social harmony will prevail. Thus, for those able to abide by li, strict government is unnecessary, and punishments are need only for those cannot follow li. Or, as the Li Ji (The Book of Rites) put it, “Etiquette does not descend to the common folk, punishment does not ascend to the high officials.”[27]

Philip Huang, legal scholar at Renmin University, writes that while modern Western law has become increasingly secularized and separated from “morality,” Chinese law has always been highly “moralistic,” despite never claiming to be anything other than worldly. The influential place of Confucianism, Huang writes, “made for a much greater role for moralism in both governance and law.”[28] This has implications for our discussion about the public and private, for Confucian governance through its “public morality” allowed for a much greater range of things considered public.

At the top of the legal system was the Emperor, who was both legislator and final judge, and all formal law emanated from the authority of the Emperor. In a point of difference with several Western countries, penal law was the principal form of law.[29] Huang writes that the combination of Legalism with Confucianism “lent substance to the metaphor of the state’s functionaries being the “father-mother official,” rather than merely the austere father.”[30] He was to lead “his children” by example (Confucian rituals and morality), but discipline them if they overstepped bounds (Legalist punishment). Moreover, given the Confucian view of society as deeply hierarchical and the Legalist objective of strengthening state power, Chinese traditional law “emphasized the significance of protecting government powers and social interests rather than protecting individual rights and civil matters.”[31]

There was little to no equality before the law in traditional China. This is strongly reinforced by the Confucian “five relationships.” These were the relationship of the emperor to subject, the father to the son, the husband to the wife, the older brother to the younger brother, and the friend to the friend. In all these, obligations and duties were deeply unequal, but a person would play different roles in different contexts. Such was the influence of Confucianism that it did not merely extend to the “moral maxims of the ‘civil justice’ sphere, but even more to the determination of punishments according to superior vs. inferior differences in the “criminal law” sphere.”[32]

As mentioned above, it has been noted by scholars that the public/private distinction has been recognized in China for millennia. For example, Shin-Yi Peng states that Confucius “was familiar with the distinction between private and public,” but that the unit to enjoy privacy was largely the family, not the individual person.[33] Hao Wang provides a similar argument, citing Confucius: “do not watch what is improper, do not listen to what is improper…” and “to get and talk from gossip or hearsay is improper.”[34] He also mentions that laws forbade children to report their parents to the authorities, thus protecting some form of “familial privacy.”[35] This, as Hao Wang notes, reveals more the strength of the “five relationships” than respect of privacy.

The key point regarding the relation between Confucianism and privacy is that the spheres of private and public life are considered to be governed by the same rules, and the family is considered the model of the state. In this way, filial piety was not only supposed to be shown by sons to father, but also by subject to emperor. Indeed, as Moore wrote, Confucians holds that “the tie between father and son was the moral and political foundation of the state. If this bond dissolved, no imperial laws could hold the state together, even with energetic efforts at stringent enforcement.”[36]

As for the Legalists, they made a clear distinction between public and private, but always sought to protect and strengthen the public against the latter. Another quote from Han Feizi will illustrate the point:

In our present age he who can put an end to private scheming and make men uphold the public law will see his people secure and his state well ordered; he who can block selfish pursuits and enforce the public law will see his armies growing stronger and his enemies weakening.[37]

Jaroslaw Zawadzki, in an article on the legal code of the Qing Dynasty, wrote that traditional Chinese law “had no notion of civil, criminal or administrative branches of law as such.” Moreover, he states that there was “no clear distinction between public and private law either.”[38] An example from the Qing Code demonstrates how the public and private were fused in traditional Chinese law, and how the private, even familial matters of conscience, were regulated by public laws. This example is from a subsection of the Qing Code that presents the “ten atrocities,” the seventh “atrocity” being:

Lack of filial piety (accusing or abusing one’s grandparents, parents, husband’s grandparents or parents, moving to a different location or dividing wealth while grandparents or parents are still alive or lacking in due care for them, marrying, enjoying oneself or wearing auspicious clothes while in mourning for one’s parents, refusing to mourn one’s grandparents or parents or pretending to be in mourning)[39]

The fact that laws had decreed that one cannot “[pretend] to be in mourning” indicates that even subjective feelings about family matters fell within the purview of the public. This does not mean that traditional China was exceptional in any way, but that the distinction between the spheres of the public and private was quite blurry by current standards, and that legal protection of privacy as we know it today was completely different.

Finally, Zawadzki notes an interesting similarity between traditional China and Europe with regards to the “economy.” Economic matters, he finds, are regulated under the section of the Qing Code titled “Regulations on Families.” He notes that this indicates that the “economic domain was thus perceived as one of the facets of family life.” This, he remarks, shows a similar mindset to that of traditional Europe. For the term economy derives from two Greek words: oikos, which means “household,” and nomos, which means “law,” i.e. “law of the household.” It was not until after Adam Smith (1723-1790) that the economy came to be considered as a separate realm.

Socialist China

The triumph of the CPC in 1949 meant not only that Mao and CPC cadres would be the rulers of China, but that a particular vision of society and the economy would reign in China. The Communist vision of society denied the strict distinction between public and private and sought to re-politicize production, a process which in capitalist countries is considered largely apolitical. A liberal capitalist country will have a public state that formulates and enforces the laws regulating the private interaction and competition between individuals, the goal tending to be that the state do as little as necessary.[40] A socialist country, on the other hand, does not consider the state to be merely the formulator and enforcer of laws, but instead sees the state as the embodiment of the “people” or the “proletariat”. The socialist state is not supposed to be passively setting the rules of cooperation and competition, but rather to mobilize and direct people’s activities, especially in the sphere of production.

The law, which in liberal capitalist countries often acquire a near-sacred status as either expression of universal liberal values or the will of the people as expressed in representative bodies, is not necessarily seen the same way in socialist countries. Instead, the law is seen as the codification of the privileges of the ruling class and a tool of class warfare. Upon coming to power, socialists, for example in the Soviet Union, did not seek to change the nature of law, but rather to turn the weapon of class warfare against the enemies of the proletariat and the Communist Party.

The CPC, once in power, dismantled the former legal system of China. As a result of the Soviet Union’s experience with socialist rule and laws, the PRC turned to the USSR for inspiration. Vyshinsky, who was the leading Stalinist jurist and prosecutor, held the following view of law:

Law is a formal, normative expression of the will of the ruling class, as formulated and enforced by the state in the interests of that class. In a socialist state … the communist Party, as the representative of the ruling proletariat, should enjoy absolute control over the creation of positive law by the organs of the state. The party should also determine the form and content of these laws according to the requirements of its evolving program of economic and social development.[41]

Hao Wang writes that after “systematic study of the Soviet experience, Mao Zedong and his fellow jurists accepted Vyshinsky’s theory.”[42] “According to the Chinese adoption of the Soviet legal experience,” Hao Wang writes, “the Communist Party of China (CPC) holds absolute authority over the determination of the content of the law, while the function of law is to express, in a positive, normative form, the current Party policy.” The law, like the army, was to be a “weapon of class struggle,” and the PRC’s first president of the PRC’s Supreme Court “emphasized that socialist China’s judicial system must actively serve its political goal.”[43]

While the Mao years of the PRC no doubt witnessed changes in family and private life,[44] there did not emerge a notion of a right to privacy, for both rights and the individual was considered subordinate to other social goals and policies. I now turn to the period after the reform and opening up.

Post-reform China

The reform and opening up pursued by China from 1978 and onwards marked a substantial change in China’s social and economic history. Under Deng Xiaoping, the CPC leadership decided to implement many aspects of capitalist production, while at the same time opening up to the world in terms of both trade and travel. Hao Wang presents three important consequences of China’s new direction. First, China’s change in economic structure from state planning to a “socialist market economy” has led to the recognition of private property and has made the pursuit of private interests more socially acceptable. Consequently, Hao Wang writes, the individual is now “regarded as an independent subject and encouraged to pursue individual interests.”[45]

Secondly, Hao Wang suggests that the opening up to the world has caused “Western values” to spread among Chinese people. Western values that emphasize individual freedom and equality have led Chinese to begin to “struggle for their due interests, which include the right to privacy.”[46] Broadening education and international study exchanges have also contributed to an increased respect for privacy according to Hao Wang.

Thirdly, he writes that new technology has also been an impetus for privacy recognition. He writes that the internet has “transformed the Chinese lifestyle” and that it provides a “medium for the changes of privacy ideas.” As a result of the internet and advanced technology, “privacy issues have arisen in new forms.”[47] In this way, my later arguments are foreshadowed by Hao Wang’s views that changes in economic structure, the introduction of new ideas and values, and advanced technology has contributed to the increased salience and recognition of privacy.

The Constitution of 1982, the “fundamental law of China” and the “supreme legal authority,” protects different aspects of privacy in articles 36 to 40. However, the rights granted by the constitution are almost always “protected only against private parties, such as the actions of social organizations or citizens.” The only exception is article 36, which applies both to the government and to private parties. Article 36 states that “[no] state organ, public organization, or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.”[48]

While Hao Wang writes that there is “no clear constitutional protection of privacy right in China,” articles 37-40 offer indirect protection. Article 37 “protects the freedom of Chinese citizens,” and any detention, deprivation, restriction is prohibited unless sanctioned by law. Article 39 protects the citizen against “unlawful search of, or intrusion into, a citizen’s residence.” While significant, he writes that these articles “only protect privacy of body and privacy of territory.”[49]

Article 40 protects the “freedom and privacy of correspondence of citizens.” However, it is article 38 which Hao Wang sees as the most important. Article 38, he writes,

protects personal dignity, which clearly states that Chinese citizens’ personal dignity is inviolable and that insult, libel, false accusation, or false incrimination directed against Chinese citizens by any means will be prohibited. In fact, in the domain of Chinese jurisdiction, personal dignity is a specialized phrase. Personal dignity can be understood to include the right to name, right to portrait, and the right to privacy.[50]

In addition to the Constitution of 1982, other sources of law also offer some privacy protection in China. The General Principles of Civil Law, the GPCL (1986), in articles 99-101, “regulates three types of torts” relevant for privacy protection. First, it protects citizens’ right of personal name, second, it provides the right to portrait, and third, it protects the right to reputation.[51] Owing to the difficulty of “applying these provisions to the cases concerning privacy,” the Supreme People’s Court in China has “issued two judicial interpretations regarding the application of the GPCL to privacy in 1988 and 1993.” While these interpretations clarify certain aspects, they both consider merely the publication of “private information” and they consider such cases as violations of the right of reputation, not privacy as such.[52] Furthermore, tort laws have also been used to cover similar issues. For example, unless there has been caused damage to reputation or unless there has been commercial use, “unauthorized non-commercial use of a person’s name or portrait” does not constitute a violation of the law.

For these reasons, Hao Wang writes the GPCL and the judicial interpretations are “inadequate for protecting privacy in China.”[53] The Tort Liability Law (2010) “provides explicit protection to privacy for the first time in China,” but in the absence of further clarification of the scope of privacy, it does not represent a revolutionary change. Finally, Hao Wang criticizes the current state of privacy protection in China for tending to “prohibit actual disclosure, rather than the collection, use, or storage of individuals’ personal information.”[54] He also writes that some of the protections are varied and “only a by-product of another legislative goal,” and that they apply to privacy “in different forms.” He also mentions the limitation that privacy is subordinate to the interests of the government.[55]

The current situation with regards to data privacy and online surveillance show both certain improvements and major challenges.[56] It is beyond the scope of this paper to enter into a discussion of the various topics associated with digital and data privacy. For example, the Chinese social credit system, both being implemented and under development, raises fundamental privacy questions. I will only say this on the matter, that if the offences that affect one’s rating in the system are only those which constitute clear violations of law and contracts, then privacy may not be as threatened as some fear. However, if behaviour in one’s private life, in which individuals believe themselves to be alone and unobserved, also affects one’s rating, then this will thoroughly damage the right to privacy in China.

The emergence of “modern” privacy in China in the late-20^th century

Hao Wang suggests four “possible theories to explain the insufficient privacy protection in contemporary China.” They include 1. the sources of Chinese law, 2. the attitudes towards law in China, 3. the emphasis on collective interests in socialist China, and 4. the difficulties in defining privacy and detecting violations of it. While I find all these reasons to be sound, I will now present my three arguments as to why privacy rights as such emerged recently in China.

Capitalist production and general privacy rights

To begin with, I agree with Moore’s view that privacy tends to stand in a relation to the status and development of a public sphere. Thus, rudimentary forms of privacy are found in societies with rudimentary forms of a public sphere. Stockman, in a review of Moore’s Privacy, writes that “[most] such (tribal) societies, however, lack any but the most rudimentary public authority or public sector, so there are no generalized rights of privacy in relations to such a public sector.”[57] The other side of this statement is that if a public authority is sufficiently advanced and general, one might expect the potential for generalized rights of privacy, in the sense discussed earlier in this paper.

In his account of the emergence of the modern state with its accompanying crystallization of the private and public, Justin Rosenberg considers the change from feudalism to capitalism to be essential. About the nature of the feudal system, Rosenberg writes the following, echoing Zawadzki’s remark earlier:

The heritable fief typically combines personal rights of appropriation over land and productive labour with extensive political jurisdiction. On the one hand, the fief is ‘owed’ to the liege lord not as a public office but as a personally contracted possession; on the other, it carries rights of economic exploitation which can be exercised only through mechanisms of political command and subordination – serfdom. There are thus no distinct ‘political’ and ‘economic’ realms.[58]

Like in traditional China, the family, the soil, and production were all connected. The end of feudalism, however, took time and was a product of multiple processes. An important force in this respect was the centralizing drive of absolutist monarchs. In his account of state formation in Western Europe, Charles Tilly makes the crucial point that political rights were not suddenly created by the emerging states, but rather usurped from other organizations and units. Tilly states that

A large part of the process consisted of the state’s abridging, destroying or absorbing rights previously lodged in other political units: manors, communities, provinces, estates. In cases like the state’s seizure of control over justice from manorial lords, churches and communities, the right itself continued in more or less the same form, but under new management.[59]

The centralization and usurpation of power and position by the modern state contributed also to the generalization of rights, as they were no longer vested in particular or local organizations. Morton J. Horwitz, in his article on the emergence of the legal public/private distinction, also mentions the role played by the centralizing regimes. In addition to this, he argues that it was the “emergence of the market as a central legitimating institution [that] brought the public/private distinction into the core of legal discourse during the nineteenth century.” He notes that the distinction was older, but that it was not before the 19^th century that a “fundamental conceptual and architectural division in the way we understand the law” took place.[60]

This argument is fundamentally similar to that of Moore. He writes that “royal absolutism … managed to bring the particularist and divisive tendencies of the Middle Ages under some sort of control,” but that it was not until the 19^th century “triumph of commerce and industry” that privacy rights were substantially strengthened.[61] Moore considered the rise of the idea of the free individual to be connected to the new economic order. Against the feudal constraints on production, Moore writes that bourgeois “[economic] individualism triumphed.” Consequently, he argues, private property “came to mean the right to do as one wanted with one’s own.” Moreover, he argued that “[one] can also detect a change in the character of work itself from a predominantly social activity to a predominantly private one.”[62]

Marx’s account of the emergence of the purely political, described in Rosenberg’s work The Empire of Civil Society, reinforces Horwitz and Moore’s arguments. Marx had the idea that the “political,” or the purely “public,” could not be realized before production had been taken away from the hands of feudal privilege and made into a “private” activity. He remarks that the change in mode of production has significant implications for ideas of the public and private, and the political and economic. Under feudalism, of which traditional China in many respects was an example, production and political privilege is unified, thus blurring what we today consider the distinct realms of economy and political office.

With the triumph of the bourgeoisie, production underwent a transformation from being closely tied to political office, familial authority, particularistic land rights, to being “privatized,” based on impersonal capital and commodity exchange. This change, Marx notes, had the effect of producing new ideas of equality, freedom, and what constituted private. In the same way that the economy could be thought of as private under capitalism, the idea of the public and political was “freed” from being tied to the soil of feudal production. The overthrow of feudalism, Marx wrote,

set free the political spirit, which had been, as it were, split up, partitioned and dispersed in the various blind alleys of feudal society. It gathered the dispersed parts of the political spirit, freed it from its intermixture with civil life and established it as the sphere of the community, the general concern of the nation, ideally independent of those particular elements of civil life.[63]

Furthermore, Marx also argued that the emergence of the “private individual” was also produced by the emergence of capitalism. Rosenberg cites Marx:

The more deeply we go back into history, the more does the individual … appear as dependent, as belonging to a greater whole …. Only in the eighteenth century, in ‘civil society’, do the various forms of social connectedness confront the individual as a mere means towards his private purposes, as external necessity.[64]

The public state was to enforce rights generally, for the mode of production no longer required titles, honours, or privileges (although they naturally persisted in some forms), but could see all as equal “exchangers” of “commodities.” Thus, one finds in the historical-sociological works of Moore, Rosenberg and Marx an account of the emergence of the distinctly private as a result of the centralizing force of state formation and the rise of capitalism. Through the general public state and the general private sphere of production, the generalized right of privacy may emerge. This concludes the first argument. It suggests that China’s reform and opening up will provide the conditions for a general right of privacy if China maintains and/or expands its market reforms. In this respect it may be observed that privacy rights did become a concern following the adoption of capitalist principles of production post-1978. However, this fact cannot prove the argument in any general way.

Technological changes

Warren and Brandeis, writing in the late 19^th century, argued that technological change made protecting privacy more salient. They wrote that

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.[65]

The point they made 130 years ago holds equally true today. Wacks, writing in 2010, began the preface of his book with the following words: “Scarcely a day passes without reports of yet another onslaught on our privacy.”[66] Listing the advances made in biometric recognition, in surveillance capabilities, in facial recognition, in spying software, in drone development, etc., would be unnecessary. Alan Westin has written that privacy “gives individuals, from factory workers to Presidents, a chance to lay their masks aside for rest.”[67] Today, it is no longer obvious when we can lay aside our masks, and the demand for encryption technology and encrypted messaging applications indicates that people are concerned about the attack on their privacy. How important technological encroachment on privacy is depends on the people’s attitudes, which we will briefly examine below.

Norms

Finally, I argue that the status of privacy is highly influenced by normative environments. Tianjian Shi, in his work The Cultural Logic of Politics in Mainland China and Taiwan, argues that norms significantly influence how people both perceive and interpret their social and political environments. Using the work of Talcott Parsons and Edward Shils, Shi writes that people “normative orientations” influence three distinct aspects of decision-making: 1. Cognitive decoding, 2. Affective encoding, and 3. Evaluative encoding. The first refers to the fact that the “same situation can be cognitively decoded in a variety of ways.” The second, affective encoding, means that actors give different emotional significance to situations. The third, evaluative encoding, refers to how actors see the range of possible actions open to them.[68]

Shi argues that the norms held by many Chinese influence their views on democracy. According to the framework, people holding different norms may interpret the word democracy differently, may attach different emotional significance to it, and may respond differently when faced with the same political situation. I believe that a similar analysis would apply to the idea of privacy in China. Shi found that many Chinese in both mainland China and Taiwan subscribe to a conception of democracy that he calls minben (guardianship) democracy. This is a more paternalistic view of democracy, where the government ought to serve and listen to the people, without being obliged to always follow the people’s voice when the government knows better. Moreover, Shi argues, based on survey data, that Chinese people have a more social and less individualistic definition of self-interest and a greater acceptance of authority than western people.[69] In Shi’s account, such cultural norms shape the political life of countries.

In this way, how privacy is viewed likely to be highly influenced by which norms people hold. For example, people who subscribe to the two norms mentioned above are unlikely to emphasise the importance of protecting privacy to the same degree as people holding the opposite norms. Survey data would be necessary to confirm this, but the logic of the argument appears sound. Similarly, those who hold a minben view of democracy are likely to be less concerned with government invasion of privacy. In this way, the evolution of norms within China is likely to have a strong impact on the future status of privacy rights.

Conclusion

In this paper, I have sought to address the status of privacy in China and why it has recently become a salient issue in China. The paper has presented three main arguments. The first and principal argument is that privacy is likely to be strengthened by the rise of capitalism. The second argument is that privacy rights are likely to become more salient in the face of technological advances which increasingly intrude in people’s lives. The third argument is that the status of China is likely affected by which norms are prevalent in China. All of these reasons, I believe, are complimentary and do not exclude each other. I would have liked to further develop the two last arguments, and more exhaustively discuss the connection between current norms in China and China’s traditional and socialist past. Despite its almost exclusive reliance on second hand sources and the authority of scholars, I hope this paper has presented a sensible interpretation and synthesis of existing literature on the status of privacy rights in China.

[1] It is slightly strange to write that “privacy” is something that emerges in “public,” but as a legal concept, “privacy” requires a “public” counterpart to enforce itself.

[2] Bonnie S. McDougall, “Particulars and Universals: Studies on Chinese Privacy,” in Chinese Concepts of Privacy, eds. Bonnie S. McDougall and Anders Hansson (Leiden: Brill, 2002), 3.

[3] Ibid., 8.

[4] Ibid., 4, 9.

[5] Song dynasty gentry women were advised in the event of fire to “screen their faces with their sleeves as they sought escape.” Ibid., 11.

[6] Ibid., 13.

[7] Ibid., 21.

[8] Ibid., 24.

[9] Norman Stockman, “Intruding on Barrington Moore’s Privacy: A Review Essay,” review of Privacy: Studies in Social and Cultural History, by Barrington Moore Jr., Theory, Culture & Society 6 (1989), 136.

[10] Barrington Moore Jr., “Privacy,” Society (January/February 1998): 292, 296.

[11] Hao Wang, “The Conceptual Basis of Privacy Standards in China and its Implications for China’s Privacy Law,” Frontiers of Law in China 7, no. 1 (2012).

[12] For example, see Hao Wang, Protecting Privacy in China: A Research on China’s Privacy Standards and the Possibility of Establishing the Right to Privacy and the Information Privacy Protection Legislation in Modern China (Heidelberg: Springer, 2011), 1.

[13] Samuel D. Warren & Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4, no. 5 (1890): 193-220.

[14] Ibid., 197. (emphasis added)

[15] Ibid., 205. (emphasis added)

[16] Ibid., 216.

[17] Cited in Hao Wang, “The Conceptual Basis of Privacy Standards in China,” 142.

[18] Ibid., 142.

[19] Raymond Wacks is a good example. After spending considerable time lamenting the difficulties of defining privacy, his own tentative definition is essentially that of Warren and Brandeis. This is not to deny the diversity of views and experiences of privacy, but the legal concept of privacy is not so elusive as is often claimed. See Raymond Wacks, Privacy: A Very Short Introduction (Oxford: Oxford University Press, 2015), 47-8.

[20] “Private,” Online Etymology Dictionary, accessed July 15, 2020, https://www.etymonline.com/search?q=Private.

[21] “Public,” Online Etymology Dictionary, accessed July 15, 2020, https://www.etymonline.com/search?q=public.

[22] Bonnie S. McDougall, “Particulars and Universals: Studies on Chinese Privacy,” 8.

[23] Guobin Zhu, “The Right to Privacy: An Emerging Right in Chinese Law,” Statute Law Review 18, no. 3 (1997): 208-209.

[24] Yuri Pines, “Legalism in Chinese Philosophy,” The Stanford Encyclopedia of Philosophy (Winter 2018 Edition), Edward N. Zalta (ed.), retrieved from https://plato.stanford.edu/archives/win2018/entries/chinese-legalism/.

[25] Han Feizi, Basic Writings, translated by Burton Watson (New York: Columbia University Press, 2003), 17.

[26] Hao Wang, “The Conceptual Basis of Privacy Standards in China,” 136.

[27] Jaroslaw Zawadzki, “Outline of Qing Law,” Roszniki Humanistyczne Tom LXII, zeszyt 9 (2014) – (Humanities Yearbook Volume 67, no. 9): 150.

[28] Philip C. C. Huang, “Morality and Law in China, Past and Present,” Modern China 41, no. 1 (2015): 5.

[29] For example, Huang states that in the Qing code, property rights were not “stated as a positive legal principle, but rather as a host of concretely situated punishments for their violation…” Ibid., 14.

[30] Ibid., 18.

[31] Hao Wang, “The Conceptual Basis of Privacy Standards in China,” 136.

[32] Huang, “Morality and Law in China,” 28.

[33] Shin-Yi Peng, “Privacy and the Construction of Legal Meaning in Taiwan,” The International Lawyer 37, no. 4 (Winter 2003): 1038.

[34] Hao Wang, “The Conceptual Basis of Privacy Standards in China,” 137.

[35] Ibid., 138.

[36] Barrington Moore Jr., “Privacy,” 290.

[37] Han Feizi, Basic Writings, 22.

[38] Jaroslaw Zawadzki, “Outline of Qing Law,” Roszniki Humanistyczne Tom LXII, zeszyt 9 (2014) – (Humanities Yearbook Volume 67, no. 9): 153.

[39] Ibid., 155.

[40] There is here an interesting parallel to the Daoist concept of Wu-Wei, meaning “inaction,” which has been extolled as an ideal state of government in which the society requires no interference to function smoothly.

[41] Cited in Hao Wang, “The Conceptual Basis of Privacy Standards in China,” 151.

[42] Ibid., 152.

[43] Ibid., 152.

[44] Yunxiang Yan, Private Life under Socialism: Love, Intimacy, and Family Change in a Chinese Village, 1949-1999 (Stanford: Stanford University Press, 2003).

[45] Cited in Hao Wang, “The Conceptual Basis of Privacy Standards in China,” 141.

[46] Ibid., 141.

[47] Ibid., 141.

[48] Ibid., 146.

[49] Ibid., 147.

[50] Ibid., 147.

[51] Ibid., 148.

[52] Ibid., 148-149.

[53] Ibid., 149.

[54] Ibid., 150.

[55] Ibid., 150.

[56] Scott Thiel, “China takes a giant step forward in data privacy,” Privacy & Data Protection 13, no. 6 (2013): 14-15; “The Right to Privacy in China: Stakeholder Report, Universal Period Review, 17^th Session – China,” Privacy International, and the Law and Technology Centre of the University of Hong Kong, March 2013.

[57] Stockman, “Intruding on Barrington Moore’s Privacy,” 131.

[58] Justin Rosenberg, The Empire of Civil Society: A Critique of Realist Theory of International Relations (London: Verso, 1994), 68.

[59] Charles Tilly, “Reflection on the History of European State-Making,” in The Formation of National States in Western Europe, ed. Charles Tilly (Princeton: Princeton University Press, 1975), 37.

[60] Morton J. Horwitz, “History of the Public/Private Distinction,” 130 U.Pa. L. Rev. 1423 (1982), 1424.

[61] Moore, “Privacy,” 296.

[62] Ibid., 296.

[63] Cited in Justin Rosenberg, The Empire of Civil Society, 69.

[64] Ibid., 149. (emphasis added)

[65] Warren, S. D. and Louis D. Brandeis, “The Right to Privacy,” 196.

[66] Raymond Wacks, Privacy: A Very Short Introduction (New York: Oxford University Press, 2010), ix.

[67] Westin cited in Wacks, Privacy (2010), 35.

[68] Tianjian Shi, The Cultural Logic of Politics in Mainland China and Taiwan (New York: Cambridge University Press, 2015), 18-19.

[69] Ibid., 192-220.

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