The Protection And Restriction On Privacy Right In Civil Law

As a newly emerging right in the worldwide range, the privacy right was firstbrought up by Samuel Warren and Louis D. Brandeis and soon got the attention ofscholars and judges of different countries. In China the discussion of privacy rightwas first initiated by scholars in the1980s and then in the next few decades has beenfrequently used by the people’s courts. Article2of the PRC Tort Law stipulates theprivacy right as a independent right to be protected. This provision has been regardedas a symbol that privacy has become an independent right since then. However suchregulation has failed to achieve positive effect in the judicial practice of the people’scourts. This paper is intended to solve such chaos in the judicial practice.This paper is consisted by five parts. Chapter one of this paper introducesdifferent theories of privacy and privacy right, and gives the definition and features ofprivacy and privacy right respectively based on these theories and defines the privacyright as a right entitled to natural persons to keep one’s private secret confidential andto dominate the usage of one’s privacy.Chapter two analyses the protection of privacy right by introducing the foreignlegislation models and comparing the legislation models of the United States, theUnited Kingdom and Germany with China’s legislation model. China’s formerlegislation model by using the right of reputation to protect the privacy right was similar with the UK legislation model as to extend the current causes of action toprotect the privacy right. However as China has established an independent privacyright, it is hard to copy the UK model. Although China’s legislation model on privacyright seems resemble with the American legislation model, the content of the privacyright is different with America. The content of the privacy right in China is muchsmaller than that in America. The private domain theory and the information privacytheory of Germany have reference significance to China. This chapter also analysesthe tort liability of the privacy right and the legal responsibility.Chapter three analyses the restriction on the privacy right, especially for thepublic figures. The protection of privacy right may have conflict with other rights andthere is a necessity to restrict privacy right. This chapter analyses the principle and thecontent of such restriction. To restrict the privacy right, the privacy right shall besubject to the principle of value measurement, the principle of interest measurementand the principle of proportionality. The common core of these principles is to satisfythose conflict interests with the minimum damages caused to each right and interest.The privacy right for public figures is smaller when compared with ordinary people.Public figures can be divided into two categories: the political public figures and thesocial public figures. For political public figures, the restriction on their privacy rightis determined by the public interest. For social public figures, the restriction on theirprivacy right is determined by the private domain theory, for the privacy belonged tothe core domain, there shall be no restriction. For the privacy other than the coreprivacy, it can be restricted according to the public interests and the reasonable publicinterest.Chapter four investigates the legislation process and judicial practice ofdifferent people’s courts and clarifies the China’s legislative history on privacyprotection in three periods. The issuance of the Tort Law failed to provide sufficientregulation on the applying of privacy right and thus indicates the theoretical vacancyin privacy right.Chapter five analyses the relation between different laws and regulations on theprotection of privacy and presents the possible methods to improve the current legislation of private right. First, there shall be a separate chapter of personality rightin the civil code and the privacy right shall be stipulated in the chapter of personalityright with detailed content. Second, there shall be regulations on the restriction ofpublic figures, defining the judgment of the public figures and stipulating the principleprovision to restrict the privacy right of public figures by the public interests. Third,for the new problems arising in the protection of privacy right, like the protection ofpersonal information in the Internet, there shall be civil remedy apart from thegovernment administration and criminal sanction.