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Editor: Donald C. Clarke
George Washington University Law School

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Wednesday, October 14, 2009

Hubei regulations on the privacy of minors

There has recently been a minor tempest over regulations passed by the Hubei Provincial People's Congress Standing Committee on July 31, 2009. The provincial regulations implement the national Law on the Protection of Minors.

One provision that excited a lot of comment was the rule supposedly forbidding parents from seeing the text messages of their children. (The headline of this report, for example, is "Hubei legislation forbidding parents from checking their children's text messages is criticized as not conforming to China's situation." And the English-language Global Times reports, "Parents barred from peeking at kids' emails." ) But a look at the actual text suggests that this is a misreading.

It takes a little chutzpah to say that everyone is wrong and I'm right, but I've been saying it for so long about so many things that there's no reason to stop now. The provision in question, article 34, says, "No organization or individual may reveal private information about minors. With respect to letters, diaries, e-mails, on-line chat records, cell phone text messages, and other personal communications, no organization or individual may conceal or destroy them. Without the permission of the person or his/her guardian, it is forbidden to open and/or inspect them. The preceding does not apply when the law provides otherwise." (任何组织和个人不得披露未成年人隐私。对未成年人的信件、日记、电子邮件、网上聊天记录、手机短信及其他个人信息,任何组织和个人不得隐匿、毁弃,未经本人或其监护人同意,不得擅自开拆、查阅。法律法规另有规定的除外。) If the guardian can give permission to any Tom, Dick, or Harry, it would be silly to say the guardian could not give permission to himself. And it would further make no sense to read "guardian" in a narrow sense so as to exclude parents. Thus, it seems sensible to conclude that the provision in question does not in fact bar parents from monitoring their children's private communications, and Hubei is not an outlier after all.

This conclusion is reinforced by the fact that an earlier draft of the bill explicitly forbade parents from checking children's text messages without the permission of the child. That provision didn't make it into the final draft, presumably because that effect was not intended.

The provincial regulations do enhance the privacy of minors by broadening the scope of protected communications; the national law speaks only of letters (信件). On the other hand, the national law (perhaps unintentionally) is actually more, not less, protective than the Hubei law with respect to what it covers: it seems to forbid even parents and guardians from opening the letters of minors who have the capacity to act. Here's the provision (Art. 31 of the national law), translated quickly and inelegantly: "No organization or individual may conceal or destroy the letters of minors. With the exception of police organs or the procuracy who undertake inspection according to provisions of law because of the needs of criminal investigation, or of parents or guardians who open [letters] on behalf of minors without the capacity to act, no organization or individual may open [letters of minors]." (对未成年人的信件,任何组织和个人不得隐匿、毁弃;除因追查犯罪的需要由公安机关或者人民检察院依照法律规定的程序进行检查,或者对无行为能力的未成年人的信件由其父母或者其他监护人代为开拆外,任何组织或者个人不得开拆。)

I read the Hubei regulations as actually diminishing the protection of the privacy of minors (in a formal sense only, of course - I don't believe parents now are actually considered to be violating the law if they open their children's mail) in making it legally possible for parents and guardians to give permission to themselves to monitor their letters and other communications. But of course it also makes sense to treat letters, e-mails, and text messages similarly, whatever you decide to do about them.

October 14, 2009 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)