How to protect personal privacy and security？
A couple recently stayed in a hotel and were photographed for 8 hours, and tens of thousands of private videos were sold online. The industrial chain of sneak shots and selling personal privacy was thus exposed. From the production, manufacture and sale of candid equipment to the dissemination of candid videos, the black industrial chain is frightening. Hotels, homestays, rented rooms, fitting rooms, toilets, etc. have become prone to sneak shots. Privacy is no small matter, and dignity is damaged and may even endanger life. So, what is privacy? How to pursue responsibility for stealing others’ privacy? How can we block the eyes of voyeurs?
1 Civil Code defines the right to privacy for the first time
What is privacy? The Civil Code officially implemented this year stipulates for the first time that privacy refers to the quiet private life of natural persons and the private space, private activities and private information that others do not want to know, which is characterized by "privacy". The right to privacy of natural persons is a kind of private right relative to the public interest, which is not infringed by others. Privacy is a kind of personality right. Article 38 of China’s Constitution stipulates: "The personal dignity of People’s Republic of China (PRC) citizens is inviolable." The civil code has set up a special chapter in the fourth part of personality rights, which stipulates "the right to privacy and the protection of personal information". It can be said that this clause is the embodiment of the constitution’s protection of citizens’ personal dignity. Among them, Article 1032 stipulates that natural persons have the right to privacy, and no organization or individual may infringe upon others’ right to privacy by spying, harassing, revealing or making public.
With regard to the regulation of acts that infringe upon the privacy of natural persons, Article 1033 of the Civil Code clearly lists the specific acts that prohibit the infringement of others’ privacy. Unless otherwise stipulated by law or expressly agreed by the obligee, no organization or individual may commit the following acts: disturbing the private life of others by telephone, SMS, instant messaging tools, e-mail, leaflets, etc. Entering, photographing and peeping into other people’s private spaces such as houses and hotel rooms; Shooting, peeping, eavesdropping and disclosing other people’s private activities; Shooting and peeking at private parts of other people’s bodies; Handling other people’s private information; Infringe on the privacy of others in other ways.
The reason why sneak shots can become an "industry" is, to some extent, because sales privacy can make a profit. Some media reporters exposed, and tens of thousands of privacy videos were secretly photographed and publicly sold on the Internet. The price of a video ranged from 20 yuan to several hundred yuan. According to the degree of privacy exposure, buyers can also resell it at a higher price. Stealing photos of privacy has formed a complete black industrial chain. The upstream is responsible for collecting, stealing and sorting out personal privacy, the middle is responsible for buying and selling personal privacy, and the downstream is responsible for making profits from precision crimes or realizing other gray benefits. What is clear is that it is illegal to sell the privacy of candid photos from upstream to downstream.
Illegal production and sale of eavesdropping and photo stealing equipment may be investigated for criminal responsibility.
Stealing privacy often requires only a very cheap pinhole camera. For these eavesdropping and photo stealing devices, the Provisions on Prohibiting the Illegal Production, Sale and Use of Special Devices for Stealing Photos and "Pseudo-base Stations" (hereinafter referred to as the "Regulations") clearly prohibits natural persons, legal persons and other organizations from illegally producing, selling and using special devices for stealing photos. Miniature voice signal pick-up or recording equipment with the function of eavesdropping and stealing photos, miniature cameras and video cameras without normal viewfinder and playback display, etc., are special equipment for eavesdropping and stealing photos after being used in a disguised or hidden way and identified by the public security organs. According to Article 283 of China’s Criminal Law, anyone who illegally produces or sells special equipment for eavesdropping or stealing photos shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph. According to the aforementioned Regulations, if the illegal production and sale of special equipment for eavesdropping and stealing photos does not constitute a crime, the relevant departments shall order it to stop production and sales and impose a fine of less than 30,000 yuan. In addition to the production and sale, according to the provisions of Article 284 of the Criminal Law, anyone who illegally uses special equipment for eavesdropping or stealing photos, thus causing serious consequences, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or public surveillance.
For example, Wang and Li are husband and wife. Since 2017, Wang has rented warehouses and production workshops to assemble special equipment for eavesdropping and photo stealing, and is responsible for supervising production and delivery. Li is responsible for renting stores and in-store sales. During the operation period, Li sold cameras in the shape of sockets, smoke detectors and charging treasures to Zhang and others, and Zhang then sold them online at a higher price. In March 2019, the police found a large number of simulated shape cameras, semi-finished cameras and camera raw materials from Wang’s warehouse and production workshop. After inspection, lighters, charging treasures, watches, bracelets, stereos, glasses, USB flash drives, wall plugs, electronic clocks, pens, clothes hangers, charging heads, and cameras with plug-in shapes are all special equipment for eavesdropping and stealing photos. The court ruled that the actions of the defendants Wang and Li constituted the crime of illegally producing and selling special equipment for eavesdropping and stealing photos, and Zhang’s behavior constituted the crime of illegally selling special equipment for eavesdropping and stealing photos.
3 sneak shots of privacy are subject to administrative punishment and also bear civil liability.
Stealing the privacy of others is first suspected of violating the law and order. Article 42 of China’s Public Security Administration Punishment Law stipulates that anyone who commits one of the following acts shall be detained for less than five days or fined for less than 500 yuan; If the circumstances are serious, they shall be detained for not less than five days but not more than ten days, and may also be fined as follows by 500 yuan: voyeurism, candid camera shooting, eavesdropping and spreading others’ privacy. Although the above-mentioned laws clearly stipulate that it is illegal to peek and sneak shots of others’ privacy, some sneak shots in public places such as public toilets and subways are still banned repeatedly.
In addition to administrative punishment, sneak shots of privacy also need to bear civil liability. According to Article 110 of the Civil Code, the right to privacy is a civil right enjoyed by natural persons. Due to the characteristics of the right to privacy, tort generally manifests as infringement on the personal dignity of natural persons, which may cause mental damage. Article 1183 of the Civil Code stipulates that if serious mental damage is caused by infringement on the personal rights and interests of natural persons, the infringed person has the right to claim compensation for mental damage. Article 1 of the Supreme People’s Court’s Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Tort stipulates that if the victim violates the public interest and social morality and infringes on the privacy or other personal interests of others, the court shall accept the case according to law if the victim files a lawsuit with the court for compensation for mental damage on the grounds of infringement.
Sun found that there was a miniature camera in the bathroom of the rented room, and then called the police. The owner Wang admitted the fact of installing and taking videos and photos. The police made an "Administrative Punishment Decision" and imposed administrative detention on Wang for 10 days and a fine. Sun appealed to the court to ask Wang to delete all videos and photos and compensate for mental losses. Wang argued that he had been punished by administration and should not be liable for civil compensation. The court held that citizens’ right to privacy was protected by law. Wang installed a camera in the bathroom without Sun’s consent, and secretly photographed his life, which seriously violated Sun’s legitimate rights and interests and should bear the corresponding tort liability. Therefore, the court supported Sun’s lawsuit. According to the relevant laws and regulations, if the infringer should bear administrative responsibility or criminal responsibility for the same act, it will not affect the tort liability according to law, so Wang’s defense opinion will not be adopted. Considering the degree of Wang’s fault, the means of infringement, the specific circumstances of the occasion, the consequences caused by infringement and other factors, although Sun did not provide relevant evidence of serious consequences, considering the internal mental damage caused to Sun, the court decided that Wang should compensate Sun for his mental loss of 20,000 yuan.
4 using sneak shots to gain profits is suspected of multiple crimes.
The downstream of the industrial chain of privacy sneak shots is a gray income zone. Because the privacy cost of sneak shots is low and the spread is convenient, criminals use the privacy videos of sneak shots to make profits and even commit crimes. Some sneak shots can even invite hundreds of people to watch online in real time through the APP, and the spread is not limited by time and region. Traffickers use the snooping psychology of some groups to promote personal privacy and sneak shots on online platforms such as QQ group, which not only harms the healthy network ecological space, but also is suspected of infringing citizens’ personal information. Making, copying, publishing, selling and disseminating obscene candid photos for the purpose of making profits is suspected to constitute the crime of making, copying, publishing, selling and disseminating obscene articles for profit. If the circumstances are serious, it is suspected to constitute the crime of spreading obscene articles without making profits. Privacy winners who use privacy to blackmail the photographed person are suspected of committing extortion.
Defendants Zhao, Zhang, Yang, Ge and others opened rooms in multi-site hotels separately or in groups for the purpose of illegal profit, and installed more than 10 cameras on the air-conditioning drainage pipes in the rooms privately to shoot the private videos of the guests, and sold the "invitation code" to the defendants Shen, Cui and Feng through the network. After increasing the price, they resold or sold them to others through the network for profit. After trial, the court held that the above-mentioned defendants, for the purpose of making profits, respectively constituted the crime of making, copying, publishing, selling and disseminating obscene articles for profit, and sentenced them to fixed-term imprisonment ranging from one year to six months to eleven years and fined them, while recovering illegal income.
5 public places should bear tort liability for failing to fulfill their safety obligations.
Hotels, shopping malls, banks, stations, entertainment places and other public places have the obligation to ensure safety. According to the Law of People’s Republic of China (PRC) on the Protection of Consumers’ Rights and Interests, consumers have the right to protect their personal and property safety when purchasing and using commodities and receiving services. Consumers have the right to demand that the goods and services provided by business operators meet the requirements of protecting personal and property safety. According to the Tort Liability Law of People’s Republic of China (PRC), managers of hotels, shopping malls, banks, stations, entertainment places and other public places or organizers of mass activities who fail to fulfill their security obligations and cause damage to others shall bear tort liability. If the behavior of a third party causes damage to others, the third party shall bear the tort liability; If the manager or organizer fails to fulfill the obligation of safety guarantee, he shall bear corresponding supplementary responsibilities. Although the act of secretly photographing privacy is not directly made by public places such as hotels, the administrator’s failure to fulfill his security obligations leads to the internal act of secretly photographing, which brings privacy damage, unnecessary losses and mental damage to others and should bear tort liability.
A sports company is the operator of B fitness club, and Zhou is a paid member of the fitness club. When he was changing clothes in the locker room of the fitness club, Li sneaked a peek with his mobile phone. Zhou sued the court, demanding that A Sports Company compensate for its membership fee, loss of private education fee, lost time, transportation fee and spiritual comfort. At the trial of the case, A Sports Company argued that it had fulfilled its security obligations, on the grounds that after the incident, after Zhou reported to the police and informed the company, the employees of the company immediately closed all the entrances and exits for police investigation. The court held that according to Article 37 of the Tort Liability Law, as the manager of public places, A Sports Company’s security obligations should be reflected in the obligations of danger prevention, danger elimination and rescue after the damage. Closing the entrance and waiting for the police only fulfilled the obligation of rescue after the damage, and it failed to fulfill the obligation of danger prevention and danger elimination for Zhou’s being peeped and photographed, which led to Zhou’s damage. Because there was a third party’s infringement in this case, A Sports Company should bear corresponding supplementary responsibilities. Regarding Zhou’s claim for mental damages, the court supported it in combination with the facts of the case, the security obligations of A Sports Company and the degree of fault. Because the case deals with the liability dispute of A Sports Company for violating the security obligation, the membership fee and private education fee belong to the contents of the contract agreed by both parties, which are not the same legal relationship with this case, so the lawsuit request will not be handled. Zhou’s claim for compensation for lost time and transportation expenses is also not supported.
So, how can we prevent personal privacy from being peeped? First of all, citizens and managers of public places should further improve their moral level and legal awareness, clarify the legal bottom line, avoid stepping on the legal red line, raise their awareness of protecting the privacy of others and individuals, report violations to relevant departments in time, and form a good social atmosphere of mutual respect and protection.
Secondly, individuals should improve their protection ability, choose regular hotels and homestays to stay, pay attention to self-privacy protection and screening of sneak shots, pay attention to checking whether there are sneak shots in public places and semi-private areas, and change the password of family monitors regularly to prevent private videos from leaking and spreading.
At the same time, public places should take active security measures, strengthen the security monitoring system and security patrol work, especially increase the investigation of electronic probes, prevent outsiders from installing eavesdropping devices, and conduct regular inspections of public places. Relevant departments should also strengthen the standardization of law enforcement, supervision and management, investigate and deal with the black industrial chain of privacy sneak shots, and carry out special rectification of the whole process of upstream theft, midstream transaction and downstream communication, and prohibit the commercialization of privacy with personal interests.
(Yang Hui Author: Beijing Shijingshan District People’s Court)