Looking at the current legislation in China, there are few legal provisions on the right to privacy, and a complete legal protection system has not been formed. In China's legislation, the meaning of "privacy" is not clearly defined, and the legal protection of privacy is not directly stipulated. The protection of privacy is mainly embodied in the provisions of the constitution and civil law on personal rights and property rights.
(1) The Constitution stipulates the inviolability of personal dignity, and the right to privacy is one of personality rights.
The Constitution stipulates that the state protects citizens' lawful income, savings, house ownership and other lawful property; The personal dignity of People's Republic of China (PRC) citizens is inviolable, and it is forbidden to insult, slander, falsely accuse or frame citizens by any means; Citizens' homes are inviolable, and illegal search or intrusion into citizens' homes is prohibited; Citizens' freedom and privacy of communication are protected by law, and no organization or individual may infringe upon citizens' freedom and privacy of communication for any reason except that public security organs and procuratorial organs inspect communication according to the procedures prescribed by law.
(2) The protection of privacy in civil law.
China's General Principles of Civil Law does not explicitly stipulate the protection of privacy, but only provides protection for citizens' personal rights and property rights. In the protection of personal rights, it is clearly stipulated that citizens have the right to name, have the right to use and change their names in accordance with regulations, and prohibit others from interfering, stealing or forging them; Citizens have the right to portrait, and their portraits shall not be used for profit without their consent; Citizens and legal persons enjoy the right of reputation, and the personal dignity of citizens is protected by law. It is forbidden to damage the reputation of citizens and legal persons by insulting or slandering. There is no mention of privacy protection.
Article 1 of the Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Torts, which came into effect on March 1 2006, stipulates that "violation of social public interests, social morality, invasion of others' privacy or other personal interests", if a lawsuit requests compensation, the court shall accept it according to law. For the first time, it affirmed the protection of "privacy" by law on the premise of violating public interests.
(3) The determination of the right to privacy in China's judicial practice.
Because the law of our country does not directly stipulate the legal basis and imputation principle of "privacy", there are often two ways to identify cases of infringement of privacy in practice. One is to identify the infringement of privacy as an infringement of "reputation right" and protect it; On the other hand, if it violates social public interests and social morality, it can be considered as an infringement of "privacy interests".
Therefore, there is still no specific legal basis for the protection of privacy in China, and there is no law in the field of privacy.
The author thinks that it is necessary to limit the use of high-tech monitoring means and improve the relevant legislation in China.
3. 1 Restrict the abuse of high-tech monitoring means
With the high development of science and technology, the application of various video monitoring equipment is inevitable, but the monitoring scope must be strictly limited to the public domain and must be legally installed. We can start from several aspects.
(1) Only certain legal subjects can use video surveillance equipment with reasonable, legal and clear purposes, and the use of these subjects should also be restricted. As long as we can achieve the management goal, we can't blindly covet more secrets.
(2) Rectify the video surveillance equipment market, crack down on illegal sellers, and establish a relatively perfect market access system.
(3) Strengthen the construction of information security system, build a safe network information trading environment, and prevent malicious software from infringing citizens' privacy and property rights.
(4) Clear the subject of responsibility and the way to fulfill the responsibility. For example, in the use of video surveillance equipment, the system of "whoever installs it is responsible" is established, and the surveillance video is promoted to be managed by the setting subject. At the same time, the punishment measures and specific degree of infringement of privacy should be clearly defined in legislation to standardize the application of high-tech products.
3.2 Improve China's "privacy" legislation
China's privacy protection system is not perfect, and it is only "indirect" protection at present, lacking clear legal basis. Only by clearly affirming the right to privacy in legislation can we really raise the protection of privacy to a new level and complete the important task of protecting citizens' right to privacy. If the right to privacy is not recognized in legislation, then the protection of citizens' right to privacy in China can only be in an embarrassing situation where theory and legislation are seriously divorced. The author thinks that the protection of privacy should be based on civil law protection, supplemented by other legal protection.
On the one hand, it is necessary to speed up the civil legislation of the right to privacy and clarify the scope, power and protection methods of the right to privacy. In the case that the legislative conditions of the civil code are not yet met, we can first formulate separate special laws such as the personal rights law or the tort law, and list the right to privacy as a chapter and make detailed provisions. On the other hand, the State Council can formulate unified administrative regulations, or local governments at all levels can regulate high-tech monitoring means at the administrative level, so as to draw a relatively clear boundary between privacy interests and public interests, which can provide a perfect protection framework for privacy and better coordinate its conflict with the public interests represented by high-tech means.