I advise you to defend your rights with legal weapons.
Privacy is an important right in personality rights, belonging to civil rights and private rights. All countries in the world attach great importance to the protection and research of privacy. Many countries have incorporated the right to privacy into the civil code and directly protected it. In some countries, it is generally protected. When the right to privacy is violated, it is directly protected according to precedents and regulations. The development of civil law in China is slow, and the research on personality right is even more backward. Because there is no provision to protect the right to privacy in civil law, violations of privacy are very common. In judicial practice, cases of infringement of privacy are on the rise. In order to conform to the development trend of world civil law and the needs of China's market economy, civil law research has been paid attention to in recent years. However, due to the lag of the law, the protection of privacy is more prominent. The author can only use a little superficial theoretical knowledge, combined with practical experience, to think about the lack of privacy protection in China and improve the legal protection system.
I. Introduction
Civil rights protection refers to the use of civil protection means to prevent or reduce the infringement of civil rights or restore the infringed civil rights (1). The ways to protect citizens' rights are divided into public relief and private relief. Privacy, as an important personality right, can be protected by private relief when it is infringed. However, due to China's long-term emphasis on public relief, that is, public intervention, the development of private relief is limited and not systematic, and most of them are public relief protection, that is, the state has public rights to protect its rights. At present, China's laws on the protection of personality rights are relatively perfect, but there is still no clear system of value orientation. In particular, there is no explicit provision to protect the right to privacy. Just refer to the relevant reputation rights in the relevant personality rights to protect it. The invasion of privacy is quite serious, common and difficult to contain. According to the current situation of privacy protection in China and drawing lessons from foreign achievements, the author tries to improve the legal system of privacy protection as a personality right in terms of the scope, measures and methods of privacy protection through his own theory and trial practice.
Second, the meaning and historical evolution of the right to privacy
(A) the content of the right to privacy
The right to privacy refers to the personal right of natural persons to enjoy the peace of private life, and private information is not illegally interfered, known, collected, used and made public by others (2). According to the specific situation of our country, combined with relevant foreign theoretical research results, the contents of privacy mainly include: (1) citizens have the right to name, portrait, address, home phone number and body and skin shape secrets, and they are not allowed to spy, disclose or spread without permission. (2) Citizens' personal activities, especially those in their houses, are not subject to surveillance, voyeurism, photography or video recording, except those where they live under surveillance according to law. (3) Citizens' houses are not subject to illegal intrusion, peeping or harassment. (4) Citizens' sexual life is not interfered, interfered, peeped, investigated or made public by others. (5) Citizens' savings and property status shall not be investigated and published illegally, except those that need to be published according to law. (6) Citizens' personal documents such as correspondence and diaries are not subject to snooping or illegal disclosure, and citizens' personal data are not subject to illegal collection, transmission, processing and utilization. (7) Citizens' social relations are not subject to illegal investigation or publicity. (8) Citizens' archival materials shall not be illegally disclosed or expanded. (9) Citizens' past or present pure personal circumstances, such as repeated lovelorn and rape, shall not be illegally disclosed to the public, nor shall they be collected or made public. (10) Any other personal data belonging to citizens' private content shall not be illegally collected, transmitted, processed and utilized (3). The above contents can be summarized into four aspects, namely, related to private life, peace, image and name. Privacy has the following characteristics: (1) The subject of privacy can only be a natural person. Privacy is the private right of natural persons, excluding legal persons, especially corporate legal persons, which is actually a trade secret. Trade secrets do not have the essential attribute of privacy that has nothing to do with public interests and group interests. (2) The object of privacy includes private activities, personal information and personal fields. (3) The scope of protection of privacy is limited by public interests. The protection of privacy is not unlimited. Should be restricted by the public interest, when the interests conflict, it should be adjusted according to the requirements of the public interest. According to the characteristics of privacy, scholars at home and abroad generally believe that privacy has the following four rights: (1) Concealing privacy. The right to conceal privacy refers to the right of the right subject to conceal his privacy without being known by others. (2) the right to privacy. Natural persons not only have the negative right to conceal their privacy, but also have the positive right to use this right. Privacy refers to the right of natural persons to actively use their privacy to meet their spiritual and material needs. (3) the right to maintain privacy. Privacy refers to the right that the privacy subject enjoys to protect his privacy from infringement. When he is illegally infringed, he can take public and private remedies to safeguard the inviolability of privacy. (4) Privacy control. The right to control privacy means that natural persons have the right to control their privacy according to their own wishes. Allowing others to use their privacy, the essence of which is the transfer of their right to use privacy, is a serious infringement (4).
Historical evolution of privacy right
The right to privacy in the legal sense is 1890, which was first mentioned by American jurists and justices in Harvard Law Review, making the right to privacy a legal issue. Subsequently, the United States conducted a lot of research on the right to privacy, and in the 1930s and 1940s, American courts had precedents on the right to privacy. 1940 sidis v. F.R. Publishing Company, etc. The judge's recognition of the right to privacy is called by American legal theorists as a prominent example of the influence of law on court trials. Later, a special federal privacy law appeared, and similar provisions appeared in various States. After 1960s, William prosser, a famous jurist, divided the right to privacy into four parts in his American Tort Law (Restatement II), namely, the part related to private life, quiet life, image and name (5). The research on the right to privacy in Britain is underdeveloped and the privacy legislation is fragmented. At present, Britain is committed to systematizing and professionalizing privacy protection. In civil law countries, most cases and jurists in Germany believe that "private rights" are listed in detail in section 1 of Article 823 of the German Civil Code, and the right of reputation and personal secrets will be protected by legal provisions. Jurists and judges refuse to regard these special "personal rights" as absolute rights and should be protected by Article 823 of the Civil Code. After World War II, the situation has changed a lot. 1954 the federal court passed the judicial interpretation of "citizens' general personality rights, protecting privacy and reputation". France's Law No.70-643 of July1970+0/KLOC-0, which protects the right to privacy, supplements Article 9 of the Civil Code and stipulates the protection of privacy, that is, "everyone has the right to make his personal life inviolable". 1978 passed laws to protect personal data, as well as countries such as Switzerland. China's neighbor, Japan, has no specific provisions on the right to privacy in its civil law. However, after World War II, the Civil Code was revised and "personal dignity and gender essence" was established as the highest standard of civil law interpretation, and personal dignity included the right to privacy. 1988 Japan has also issued relevant regulations. Taiwan Province Province has also enacted relevant legislation in 1995 to protect the right to privacy. There is no clear legal provision to protect privacy in China, but it is stipulated in 1988 Opinions on Implementing the General Principles of Civil Law and 1993 Answers on Several Issues in the Trial of Reputation Rights Cases that if the privacy of others is made public and the reputation of others is damaged, it shall be deemed as infringement of their reputation rights. The right to privacy was first found in statute law, but the problem is indirect protection, not direct protection. 200 1 the Supreme People's Court promulgated the Interpretation on Several Issues Concerning the Determination of Compensation Liability for Tort Mental Damage. Although the right to privacy is not regarded as an independent personality right, and its interests are protected by the judiciary, this interpretation implies the content of infringement of privacy, which is still a progress in legislation and legal research. However, the legislation on privacy protection is obviously insufficient, which makes our country have defects in privacy protection.
Third, the current situation of privacy protection in China.
(A) the way of privacy protection
With the development of privacy protection, the protection of privacy has been paid more and more attention by the legal circles in various countries. Many countries adopt various protection methods for privacy protection, which can be summarized into three types: First, direct protection. The law recognizes the right to privacy as an independent personality right. However, when a citizen's right to privacy is infringed, the victim can take the infringement of privacy or privacy as an independent cause of action, resort to the law and request legal protection and relief. The second is indirect protection. The law does not recognize the right to privacy as an independent personality right. When a citizen's personal privacy is infringed, the victim can't take the infringement of privacy or privacy as an independent complaint and ask for legal protection and relief, but can only attach this damage to other causes of action to ask for legal protection and relief. The third is to summarize protection. In civil law or relevant laws and precedents, the protection of personal rights or personal dignity is generally stipulated, but in practice, the privacy of citizens is still protected without listing the specific contents, and the privacy protection is sporadic in relevant laws and regulations. China's protection of privacy is actually an indirect way of protection, just like Japan's, but the degree and intensity of protection are different, and it is not as perfect as this country's legal system.
(B) the lack of privacy protection and the status quo
Judging from the current legislation of privacy protection in China, there are mainly constitution, criminal law, procedural law, administrative law and civil law. As a civil private right, privacy should be protected by its basic law and civil law. Because the research of civil law in China started late, the research of personality right is relatively weak. The right to privacy in personality has always been confused with the right to privacy, and at the same time it is influenced by the unique culture of China. The degree and method of its protection have not been paid attention to by legislators. None of the statutory laws in the field of private law in China has clear privacy protection content. Only in judicial practice, when encountering privacy problems, the judicial interpretation stipulates that privacy is protected in the name of reputation. Therefore, the legislative deficiency of privacy protection in China is obvious. Because the right to privacy has not formed an independent personality right, the public's understanding of the content of privacy and whether it has been infringed is rather vague, and the problem of infringement of privacy is quite prominent in China. Not only citizens and enterprises have violated the right to privacy, but also state organs and institutions. Specific violations are: (1) invasion. Invading, searching or otherwise disturbing the peace of another person's residence is an act of violating another person's privacy. For example, Zhang, a villager in Yan 'an village, and his wife watched the yellow disc incident in the clinic where they lived. (2) monitoring. It is an act of infringing on the privacy of others to monitor and control the whereabouts, domicile and residence of others. , and install eavesdropping devices or camera equipment. For example, Xiamen Donglong Ceramics Co., Ltd., a joint venture, installed cameras in toilets, and Li Xiang Watch Factory, a Hong Kong-owned company in Xixiang Town, Baoan District, Shenzhen, installed probes in men's toilets. Another example is that the wife tried by the Intermediate People's Court of Luzhou City, Sichuan Province hired someone to secretly photograph her husband's extramarital affairs and mistakenly photographed other family members taking a bath (6). (3) peep. Deliberately peeping into other people's lives, peeping into their private lives with binoculars or other equipment, or taking photos or videos of their indoor private lives without permission should be regarded as an act of infringing their privacy. In cities, people usually live in buildings, and the distance between two floors is very small. People often use binoculars to spy on other people's indoor activities, especially their sexual activities. (4) spying. Deliberately investigating and spying on the contents of other people's correspondence or other private documents, illegally spying on other people's sexual life, illegally spying on other people's property status and other private information shall be deemed as infringing on other people's privacy. (5) search. The act of illegally searching another person's body or property in a public place or workplace is an act of violating another person's privacy. For example, a female college student in Shanghai was stopped by a male security guard when she went out after shopping in the supermarket. She thought the schoolgirl was stealing and forced to search her. (6) interference. Illegally interfering with the sexual life of other couples and harassing others by telephone should be regarded as an act of infringing on the privacy of others. If some people take pleasure in harassing others by phone and often harass others by phone in the middle of the night, the peace of others' lives will be broken. (7) Disclosure, publicity or publicity. Illegal disclosure, publicity or publicity of other people's private information, such as other people's personal data, marriage history, victim's records, medical history, property status and other past and present data and information belonging to the victim's privacy, are all acts of infringing on other people's privacy. Disclosure, publicity or publicity all spread the victim's private data or information to a third party, either orally or in writing, or through modern communication technologies (such as fax and Internet) and other ways that can let the third party know. For example, Hunan Institute of Foreign Trade dismissed six male and female students who slept in the girls' dormitory twice for violating the school discipline. Another example is that pregnant women go to the hospital for abortion surgery. Jane, a young woman from Shihezi City, Xinjiang, went to the Affiliated Hospital of Shihezi Medical College for abortion. When she took off her pants for examination, the surgeon recruited more than 20 male and female interns outside the door to watch the internship. The young woman immediately asked the intern to withdraw, but the surgeon still insisted that the intern watch and explain (7). These acts have seriously violated the public's right to privacy, and caused mental and physical pain to the victims, which can not be recovered for a long time.
Fourth, thinking about improving the protection of privacy.
In view of the lack of privacy protection in China, in order to clarify the thinking of privacy protection, the author believes that we should legislate on privacy protection in China according to China's national conditions and learn from the experience and achievements of foreign privacy protection, and clarify the value orientation and specific legal methods of privacy protection. Here are some immature ideas.
(1) Privacy should be protected as an independent personality right.
Existing legislation, including criminal law and administrative law, contains the right to privacy. As the fundamental law and the basic law, the Constitution and the Civil Law do not stipulate the right to privacy as an independent personality right, which weakens the protection of the right to privacy. For example, the criminal law will punish the civil part, especially the mental damage caused by the violation of privacy. As far as the provisions of civil law and judicial interpretation are concerned, although protection is provided, the provisions of criminal law and civil law conflict with each other, and the court has no way to solve them. This is bound to be thought-provoking As an important personality right of private rights, when the rights are violated, people can't get relief, which is a trampling on the law and a distrust of the law. Therefore, in order to fully protect the right to privacy, victims can protect their rights if there are legal remedies. Therefore, the right to privacy should be defined as an independent personality right. The Supreme People's Court's Interpretation on Several Issues about Determining the Liability for Compensation for Tort Mental Damage is one step ahead, but it is still unclear. It just expands the interpretation scope of reputation right and takes privacy as a content. People's Republic of China (PRC)'s civil code is being formulated, which is a great comfort. The two drafts put forward by the Institute of Law of the Chinese Academy of Social Sciences and the Civil and Commercial Law Research Center of Renmin University of China both legislate the right to privacy as an independent personality right, and make specific provisions on the acts, contents and sanctions that infringe on the right to privacy, so that the right to privacy can be protected and respected by law.
(2) Standardizing the content and scope of privacy protection.
Many countries have provisions on the content and scope of privacy protection, which defines whether privacy has been infringed, so as to help citizens understand and understand the content and scope of privacy and reduce the infringement on privacy. At the same time, the specific content and scope have a clear purpose and direction, and take relief measures for the infringed to fully protect their rights. Due to the continuous progress of science and technology, there are more and more privacy contents and more types of infringement. However, we can adopt a flexible method to stipulate its content and scope, and list one item separately in the legal provisions on the right to privacy, that is, "other acts that lead to infringement of privacy". So that the protection of privacy has a clear content. It also changes the current indirect protection in China into direct protection, so that the right to privacy is valued and respected as other personal rights. However, when determining the scope and content of the right to privacy, we should also pay attention to the determination of the degree of infringement and clearly define the right to privacy and other rights, that is, the right to defense. If the privacy right holder infringes on the legitimate rights and interests of the other party first, and the other party infringes on the privacy of the privacy right holder in order to safeguard its own rights and interests, according to the principle of self-help, the responsibility of the other party can be exempted or reduced. The defense of invasion of privacy should meet the following conditions (1): the privacy owner infringes the rights and interests of others first; (2) The purpose of others' invasion of privacy is to relieve others' infringed rights; (3) The other party has no other remedies (this is the essential requirement of self-help extended interpretation); (4) Invasion of privacy shall not exceed the necessary limit for safeguarding the rights and interests of others (8). According to these conditions, if the photographer who "caught the rape" wants to be exempted, he should also meet the following conditions, otherwise it will constitute an invasion of the privacy of the other party: (1) The privacy holder did have an extramarital affair first; (2) The purpose of sneak shots is only to obtain evidence of the spouse's extramarital affairs, and the improper behavior of the spouse and the "third party" who are photographed shall not be spread and made public; (3) The photographer really can't obtain sufficient evidence to prove the spouse's extramarital affairs through other channels; (4) Do not exceed the necessary limit. In a case of personality right tried by the Nanhui District Court in Shanghai, the wife is conducting divorce proceedings with her husband. During this period, the wife took relatives to the house rented by her husband and photographed her husband sleeping in the same bed with a "third party" (the wife's behavior of safeguarding her rights and interests should stop here). However, the wife still refused to give up, stripped off the underwear of the "third party" with her relatives, and then took pictures, which obviously exceeded the necessary limit. It is not unreasonable for a wife to collect evidence of her husband's infidelity, but the subsequent insult infringes on the personality right of a "third party", and the wife and her relatives bear the tort liability. Therefore, the protection of privacy should also establish a principle of responsibility, so that the parties can correctly exercise their rights.
(3) Regulate the relationship between the right to privacy and the right to know.
The right to know is a public right, which means that citizens have the right to know what they should know, including the right to know the regime, the right to know the society and the right to know personal information. Among them, understanding the regime includes understanding the personal information of state officials, such as birth, family, resume, operation, performance and so on. When the state authorizes them to manage public affairs and seek public interests, it is necessary to have a deeper understanding of their conduct, talents and values. Officials are obliged to disclose personal privacy information. The social right to know includes the understanding of all kinds of information and social news events involving public figures. Public figures, they get material and spiritual benefits from the public more easily than ordinary people. Sacrificing some privacy rights is the exchange of material and spiritual interests. This involves the privacy of public figures. Some people call it public image, which refers to members of society who are widely known in social life, such as singers, movie stars, scientists, writers and state officials. The privacy of public figures includes sunshine privacy and limited privacy. Sunshine privacy is the part of personal privacy that has beneficial or harmful contact with citizens. Limited privacy refers to the part where the personal privacy of public figures does not form beneficial or harmful connections with citizens. (8) The right to sunshine privacy is not protected by law, and it is a part that public figures voluntarily give up in order to get returns, mainly to gain social respect, realize their ambitions, have a sense of accomplishment and get material treatment. However, the privacy of public figures should be protected in the following aspects: ① their houses should not be illegally invaded or harassed; 2 Private life is not monitored; ③ Communication secrets and physical reasons; ④ Husband and wife's sexual life is not interfered or investigated by others; ⑤ Private affairs unrelated to social politics and public interests. In addition to state officials, the right to know society also includes the public's right to know social news, and it also extends the right of the media to interview and report social affairs for legitimate purposes. So there is a conflict between privacy and news reports. How to solve the conflict between the two enemies, the author believes that three principles should be followed: first, the principles of social politics and public interest; When personal interests are compared with public interests, public interests are greater than personal interests, and public interests involve society, personal interests should be subordinate to public interests and take public interests as the highest interest standard. Second, the principle of rights coordination; When the rights conflict, both parties can choose to sacrifice the minimum interests. When the right to know must be exercised at the expense of privacy, the damage to privacy should be minimized, that is, the scope of disclosure and publicity should be narrowed. When the right to know is a kind of property interest, the right to know should compete with the personal right to maintain privacy. The third is the principle of personal dignity (9) When privacy involves personal dignity, such as when another person's wife has unfair sex with a third person, or has illness, the right to know should give way to privacy, otherwise it will harm the lifelong interests of the parties. Therefore, the conflict between the right to privacy and the right to know should be solved according to three principles, and the individual's right to privacy should be protected by maximizing interests.
(1) Wei Zhensheng Civil Law 200 1. In September, Peking University Press and Higher Education Press published page 4 1.
(2) Zhang Xinbao's Legal Protection of Privacy1April 1997 People's Publishing House, p.21.
(3) Zhang Xinbao's "Tort Law" Lesson 29 Privacy, China Civil and Commercial Law Network in April 2003.
(4) Yang Lixin's Protection of Personality Rights in April 2003, China Civil and Commercial Law Network.
(5) Zhang Xinbao's "Tort Law" Lesson 29 Privacy, China Civil and Commercial Law Network in April 2003.
(6) Xu, "On the Judicial Justice of Right Conflicts Involving Privacy", contained in the book "Research on Civil and Commercial Law Theory and Trial Practice", p. 27.
(7) China Civil and Commercial Law Network. "judgment research"
(8) Xu, "On the Judicial Justice of Right Conflicts Involving Privacy", contained in the book "Research on Civil and Commercial Law Theory and Trial Practice", p. 29.
(8) Limited privacy of public figures.
(9) Yang Lixin's Protection of Personality Rights in April 2003, China Civil and Commercial Law Network.