On April 22nd, the Supreme People’s Procuratorate released typical cases of public interest litigation of personal information protection of procuratorial organs, including 11 civil public interest litigation cases in which Yuhang District Procuratorate of Hangzhou, Zhejiang Province sued a network technology company for infringing citizens’ personal information. According to the release, if Internet companies fail to fulfill their personal information management and protection obligations, the procuratorial organs will require them to bear the responsibility for public welfare damage through public interest litigation and promote the implementation of corporate main responsibility.
In the civil public interest litigation case of Yuhang District Procuratorate v. a network technology company against citizens’ personal information released this time, Yuhang District Procuratorate found that the music video teaching APP developed by the company illegally collected, stored and used personal information, and filed a civil public interest lawsuit with the court according to law. After mediation, the company voluntarily carried out a comprehensive rectification of the APP, deleted all users’ personal information collected and stored in violation of laws and regulations, publicly apologized, and promised not to infringe on users’ personal information again. For the subsequent rectification of the APP, the procuratorate introduced a third-party representative to evaluate it and allowed it to be re-put on the shelves after passing the test.
Among the 11 typical cases released by the Supreme People’s Procuratorate, administrative public interest litigation cases involve personal information supervision and government information disclosure of administrative organs such as education, market supervision, public security, online information, agriculture and rural areas; It involves the disclosure of personal information such as express delivery, medical institutions and off-campus training institutions. Civil public interest litigation cases include Internet companies’ illegal collection of personal information, illegal acquisition of personal information and consumer fraud. Criminal incidental civil public interest litigation cases involve the illegal acquisition and trading of personal information through different means, such as technical software and property services. In addition to cracking down on the criminal acts of infringing citizens’ personal information according to law, the procuratorial organs also take the network operators as co-defendants and demand to bear the responsibility for public interest damage.
Personal information protection currently belongs to the new field of procuratorial public interest litigation. In September 2020, the Supreme People’s Procuratorate issued the "Guiding Opinions on Actively and Steadily Expanding the Scope of Public Interest Litigation Cases", which clearly made the protection of personal information the focus of handling cases in the field of network infringement. Up to now, 25 provincial people’s congress standing committees have made decisions on strengthening procuratorial public interest litigation, among which 19 provinces explicitly require procuratorial organs to actively and steadily carry out public interest litigation in the field of personal information protection.
The head of the Eighth Prosecutor’s Office of the Supreme People’s Procuratorate said that in the next step, the procuratorial organs will take the opportunity of the National People’s Congress Standing Committee (NPCSC)’s deliberation of the draft data security law and the draft personal information protection law, continue to follow up and supervise the outstanding problems in the field of personal information protection that seriously harm the public interest, handle more influential typical cases, and contribute to the procuratorial power of public interest litigation for personal information protection.
Purpose   record
1. The People’s Procuratorate of Nanchang City, Jiangxi Province urged the rectification of the administrative public interest litigation case of mobile APP infringing citizens’ personal information.
2. The People’s Procuratorate of Lucheng District, Wenzhou City, Zhejiang Province urged to protect the personal information of the patients.
3. The People’s Procuratorate of Pingliang City, Gansu Province urged the rectification of the administrative public interest litigation case in which the courier leaked citizens’ personal information.
4. The People’s Procuratorate of Wuxi City, Jiangsu Province urged the protection of students’ personal information.
5. The People’s Procuratorate of Lean County, Jiangxi Province urged and regulated the administrative public interest litigation case of government information disclosure.
6. The People’s Procuratorate of Hualong District, Puyang City, Henan Province urged the renovation of the decoration industry to disclose citizens’ personal information.
7. The People’s Procuratorate of Yuhang District, Hangzhou City, Zhejiang Province v. a network technology company for infringement of citizens’ personal information.
8. People’s Procuratorate of Baoding City, Hebei Province v. Li for infringement of citizens’ personal information.
9. The People’s Procuratorate of Baoshan District of Shanghai v. H Technology Co., Ltd., Han Moumou and others.
10. People’s Procuratorate of Xixiu District, Anshun City, Guizhou Province v. Xiong Moumou and others for infringing citizens’ personal information.
11. The People’s Procuratorate of Guang Ningxian City, Guangdong Province v. Tan Moumou and others.
Case 1
The People’s Procuratorate of Nanchang City, Jiangxi Province urged the rectification of the administrative public interest litigation case of mobile APP infringing citizens’ personal information.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation   APP illegally collects and uses personal information   Public hearing   Entrusted detection
【 gist 】
In view of the situation that Internet software such as mobile APP infringes on citizens’ personal information and harms public interests, the procuratorial organs urge the administrative organs to perform their duties according to law.
[Basic case]
In July 2020, the People’s Procuratorate of Nanchang City, Jiangxi Province (hereinafter referred to as Nanchang City Hospital) found from relevant media reports that some local mobile apps violated users’ personal privacy and illegally collected and used users’ personal information, which harmed the public interest.
【 Investigate and supervise the performance of duties 】
In July, 2020, Nanchang Municipal Academy commissioned a professional testing company to conduct detailed testing on six mobile phone apps developed and operated by local enterprises, such as "Playing Blue Moon", "Dibao. com", "Riding in Hongcheng Music", "Jiangjiao Online" and "Magic Question Bank", and found that all of the above apps collected or used citizens’ personal information in violation of laws and regulations, including Collecting and using personal information without the user’s consent; In violation of the necessary principles, collecting personal information irrelevant to the services provided; Providing personal information to others without consent, etc. According to the Cyber Security Law of the People’s Republic of China and other laws and regulations, combined with the "three-set plan" and the power list of relevant departments, Nanchang Institute determined that Jiangxi Provincial Communications Administration (hereinafter referred to as the Provincial Communications Administration), Nanchang Public Security Bureau (hereinafter referred to as the Municipal Public Security Bureau) and Nanchang Internet Information Office (hereinafter referred to as the Municipal Internet Information Office) failed to perform their duties of supervision and management of personal information protection, and filed a case on August 20, 2020.
Because the supervision of mobile APP infringing on citizens’ personal information involves many administrative organs, there are problems such as overlapping functions and different levels of supervision departments. On the basis of full communication and consultation with administrative organs, Nanchang City Hospital decided to steadily promote the handling of cases through public hearings. On August 21, 2020, Nanchang City College organized a public hearing, inviting people’s supervisors, university professors and lawyers as hearing officers to supervise the hearing, and the heads of relevant departments of the Provincial Communications Administration, the Municipal Public Security Bureau and the Municipal Network Information Office attended the hearing. At the hearing, the hearing officers unanimously stated that the problems existing in this kind of mobile APP are no longer individual cases, which have infringed on the public interests. It is suggested that the procuratorial organs urge relevant functional departments to pay close attention to rectification and properly protect the personal information security of the people.
On August 27, 2020, Nanchang City Court issued pre-litigation procuratorial suggestions to the Municipal Public Security Bureau and the Municipal Network Information Office, respectively, requiring the two administrative organs to supervise and punish the illegal collection and use of personal information by mobile APP in accordance with the law, and strengthen the supervision of the collection and use of personal information by APP within the jurisdiction of this Municipality, and strengthen the related work of network law enforcement supervision. On October 23 of the same year, the Municipal Public Security Bureau and the Municipal Network Information Office replied to Nanchang City Hospital, and asked the mobile APP operators involved in the case to carry out rectification and optimization one by one for the 25 problems found in the test, and warned and punished four of them.
In the process of handling the case, Nanchang City Court also transferred the relevant clues and evidence materials related to the illegal collection or use of personal information by mobile APP to the Provincial Communications Administration. The Provincial Communications Administration has strengthened supervision by organizing and carrying out network security inspections in the telecommunications and Internet industries in the province, on-site supervision of cases involving the illegal collection and use of personal information by APP, and publicity and education of APP operators within its jurisdiction. In order to evaluate the effect of rectification, Nanchang City Hospital commissioned a professional testing company to retest the APP involved in the case to confirm that the relevant problems have been rectified.
[Typical meaning]
APP’s illegal collection of personal information has strong concealment and harm. In handling cases where mobile APP infringes on citizens’ personal information, procuratorial organs can use the professional strength of third-party testing institutions to investigate and collect relevant evidence of APP’s illegal collection and use of personal information, and determine the illegal facts that infringe on social public interests. There are many functional departments involved in supervising the infringement of personal information by mobile APP. The procuratorial organs use the supervision mode of "consultation+hearing" to strengthen communication and coordination with functional departments, and cooperate with functional departments to strengthen the security protection, supervision and management of personal information on the Internet within their respective responsibilities, thus forming a joint force for personal information protection.
Case 2
The People’s Procuratorate of Lucheng District, Wenzhou City, Zhejiang Province urged to protect the personal information of patients.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation   Personal information protection of patients   Source control
【 gist 】
In view of the market chaos of illegally obtaining personal information of patients for commercial marketing, procuratorial organs urged administrative organs to perform their duties according to law, strengthen supervision over similar cases, improve social governance, build a long-term mechanism, and form a joint force for personal information protection.
[Basic case]
From 2016 to 2018, Zhang Moumou, an employee of a children’s photography company in Wenzhou, and Lu Moumou, an employee of a children’s training company, illegally obtained more than 10,000 pieces of pregnant and lying-in women’s personal information from several hospitals in Wenzhou for the company’s commercial marketing needs, and Zhang Moumou and others also sold and provided pregnant and lying-in women’s personal information to others. The two companies involved in the case failed to fulfill their personal information protection obligations for employees’ illegal collection, use and disclosure of pregnant and lying-in women’s personal information for commercial marketing, which seriously infringed on the legitimate rights and interests of patients.
【 Investigate and supervise the performance of duties 】
The People’s Procuratorate of Lucheng District, Wenzhou City, Zhejiang Province (hereinafter referred to as Lucheng District Hospital) found clues of public welfare damage in this case when the criminal prosecution department handled the case of infringing citizens’ personal information. On July 31, 2019, a task force was set up to investigate. By reading criminal files, searching regulatory basis, collecting punishment cases, visiting functional departments, etc., the task force finds out the facts of public welfare damage, clarifies the object of supervision, and finds out the basis of supervision. The Law of People’s Republic of China (PRC) on the Protection of Consumers’ Rights and Interests stipulates that consumers’ personal information has the right to be protected according to law. Operators should follow the principles of legality, justness and necessity when collecting and using consumers’ personal information, and take necessary measures to prevent consumers’ personal information from being leaked. The market supervision and management department has the supervisory responsibility for the behavior of infringing consumers’ personal information. Zhang Moumou and others were investigated for criminal responsibility according to law because they were suspected of criminal offences, but the company involved was not punished for Zhang Moumou and Lu Moumou using illegally obtained personal information about pregnant women for commercial marketing. On August 29, 2019, Lucheng District Court issued a pre-litigation procuratorial proposal to Lucheng District Market Supervision Administration (hereinafter referred to as District State Administration for Market Regulation), urging it to investigate and deal with the illegal acts of the companies involved, and take effective measures to intensify the crackdown on illegal acts that infringe on consumers’ personal information within its jurisdiction.
After the procuratorial suggestion was issued, due to the epidemic situation in COVID-19, the investigation and punishment work was once stagnant, and Lucheng District Hospital continued to follow up and supervise. In July, 2020, State Administration for Market Regulation District imposed an administrative penalty on the photography company, confiscating 4,000 yuan of illegal income and imposing a fine of 34,000 yuan, and imposed an administrative penalty on the training company, imposing a correction order and imposing a fine of 30,000 yuan. At the same time, State Administration for Market Regulation District launched a special campaign against consumers’ personal information violations, investigated and dealt with four illegal companies, and fined 168,000 yuan. Among them, one case was rated as one of the top ten typical cases of comprehensive law enforcement action on consumer safety in key areas of Zhejiang "Liangjian 2020" protection; Carry out "sending the law to the door" publicity activities, and urge key areas and business units to strictly fulfill consumers’ personal information protection obligations.
In the process of handling the case, Lucheng District Hospital issued social governance procuratorial suggestions to two hospitals in view of the fact that the personal information of the patients was mainly leaked from two hospitals in Wenzhou, suggesting to strengthen the protection of the personal information of the patients. The two hospitals carried out warning education through cases, and took measures such as strengthening the hierarchical management of information inquiry authority, regular rotation of important posts, and encryption of work computers to actively implement rectification and improve the source management of personal information security. At the same time, Lucheng District Court, in conjunction with the case handling, and the Public Security Bureau of the Joint District and the State Administration for Market Regulation of the District, took the lead in issuing "Several Opinions on Strengthening the Judicial Cooperation of Personal Information Protection in the Consumer Field (Trial)", forming a joint force of personal information protection law enforcement and justice in the consumer field.
[Typical meaning]
In view of the market chaos of illegally obtaining personal information of patients for commercial marketing, the procuratorial organs urged the administrative organs to fully perform their supervisory duties, urged medical institutions to strengthen source management, built a long-term mechanism for law enforcement and justice, comprehensively protected the personal information safety of patients, and created a medical treatment environment that reassured the people.
Case 3
The People’s Procuratorate of Pingliang City, Gansu Province urged the rectification of the administrative public interest litigation case of leaking citizens’ personal information by express delivery.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation   Personal information protection of express delivery   Hiding technology processing   Public hearing      
【 gist 】
In view of the security risks of direct display of users’ personal information on express delivery forms, the procuratorial organs urged the administrative organs to strengthen the supervision of the front-end and end of express delivery to avoid the risk of personal information disclosure.
[Basic case]
The express orders of many express delivery companies in Pingliang City, Gansu Province do not take effective protection measures such as hiding the personal information of users, but directly display personal information such as customer names and telephone numbers, which has a major hidden danger of revealing citizens’ personal information.
【 Investigate and supervise the performance of duties 】
On June 29, 2020, the People’s Procuratorate of Pingliang City, Gansu Province (hereinafter referred to as Pingliang City Hospital) received the above clues from the masses and conducted a preliminary investigation. On August 11, 2020, it filed an investigation. Pingliang City Institute found out that the express orders of express delivery enterprises in its jurisdiction did not take hidden measures such as the name of the consignee and the mobile phone number, and did not remind them of information security by taking photos and collecting evidence, visiting business outlets and asking relevant personnel. In this regard, Pingliang City Institute conducted a random questionnaire survey through WeChat applet. Among the people who participated in the survey, 90.59% thought that the courier list might disclose personal information; 98.82% want to take protective measures such as hiding the personal information on the courier; 100% think it is necessary to strengthen the supervision of personal information protection in the express delivery industry.
In the process of handling the case, Pingliang Municipal Hospital and Pingliang Postal Administration (hereinafter referred to as the Municipal Post Office) held many consultations on improving the protection measures for personal information of express delivery, and organized hearings, inviting NPC deputies, CPPCC members, people’s supervisors, lawyers and public interest litigation volunteers as hearing officers. At the meeting, a short film of news investigation on the disclosure of citizens’ information by express delivery was broadcast, relevant laws and policies were explained, multimedia evidence was given, and the opinions of representatives of the municipal post office and express delivery enterprises were listened to. The hearing officers agreed that there is a general risk that express delivery orders will reveal citizens’ personal information in Pingliang, and the municipal post office is not in place to manage the personal information safety of the express delivery industry, so supervision should be strengthened. On September 8, 2020, Pingliang City Institute issued a pre-litigation procuratorial proposal to the Municipal Post Office, suggesting that it fully perform its duties of safety supervision and management in the express delivery market according to law, and urged express delivery enterprises to take effective measures to protect users’ information security.
After receiving the procuratorial suggestions, the Municipal Post Office issued the Notice on Effectively Protecting the Information Security of Users in the Postal Industry and made special rectification. Collective interview with the person in charge of the express delivery enterprise, requiring the express delivery enterprise to standardize the management and regularly destroy the express waybill, putting an end to the former personnel who resell user information to engage in the express delivery industry, and taking measures such as concealing the express delivery form; Carry out legal publicity on citizens’ personal information security, and train couriers on user information security.
On October 14, 2020, the Municipal Post Office gave a written reply to Pingliang Municipal Hospital on the rectification. After a sample survey, some express delivery companies stamped personal information protection tips on the waybill, and some hung information safety tips on express outlets and express vehicles. The SF Express bill and the mobile phone number of the courier communication terminal user have all been concealed. Other express delivery companies are referring to the promotion. All express delivery companies destroyed 1.05 million paper waybills, and all express delivery companies will no longer keep paper waybills in the future.
[Typical meaning]
Express management system and waybill store a large number of citizens’ personal information, which is easy to be obtained and used by criminals, endangering citizens’ personal and property safety and infringing on social public interests. Focusing on the risk of personal information leakage at the front and end of express delivery, procuratorial organs listened to social conditions and public opinions through random questionnaires, consulted with administrative organs and representatives of express delivery enterprises through pre-litigation consultations and public hearings, and jointly proposed practical protection schemes. Supervise the administrative organs to fully perform their supervisory duties in accordance with the law, and urge the express delivery enterprises to improve citizens’ personal information protection measures in various aspects, eliminate potential safety hazards, and achieve the best case handling effect with minimum judicial input.
Case 4
The People’s Procuratorate of Wuxi City, Jiangsu Province urged the protection of students’ personal information.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation   Protection of students’ personal information   Round table   Supervision of off-campus training institutions
【 gist 】
In view of the illegal acquisition of students’ personal information by off-campus training institutions for marketing enrollment and infringement of students’ legitimate rights and interests, the procuratorial organs urged the education administrative departments to perform their duties according to law through pre-litigation consultation and procuratorial suggestions to protect the safety of students’ personal information.
[Basic case]
In July 2016, Meng Mou, the general manager of A training institution, purchased more than 230,000 pieces of personal information of students in primary and secondary schools, and used the above information for telephone enrollment of his training institution. In July 2018, Meng sold to Wang and provided the above information to Fang, the general manager of B training institution. Both training institutions have no school license, and the above information is mostly the information of the whole school or class with uniform format, comprehensive content and high accuracy, including school, student name, year of enrollment, class, student number, mailing address, parents’ names and contact information, which brings serious security risks to the protection of students’ personal information.
【 Investigate and supervise the performance of duties 】
The People’s Procuratorate of Liangxi District, Wuxi City, Jiangsu Province found that there may be a violation of social public interests in handling the case of Meng’s crime of infringing citizens’ personal information, and transferred the clues of the case to the People’s Procuratorate of Wuxi City, Jiangsu Province (hereinafter referred to as Wuxi City Hospital) for review. The hospital filed an investigation on October 28, 2019. By collecting the case file of Meng’s crime of infringing citizens’ personal information, we can fully understand Meng’s illegal facts; Through the field investigation of the school premises, find out the current operating conditions of the two companies; By visiting the municipal and district education administrative departments, we learned about the performance of duties such as the issuance of school licenses, the supervision of training behaviors, and the protection of students’ personal information. On November 4, 2019, Wuxi Municipal Institute held a round table meeting with Wuxi Municipal Education Bureau for consultation. Wuxi Municipal Institute expounded and analyzed the facts and reasons for the disclosure of students’ personal information due to the failure of education administrative departments to perform their duties according to law, and listened to the opinions of Wuxi Municipal Education Bureau. Wuxi Education Bureau approved the investigation by the procuratorial organ. On November 8, 2019, Wuxi Municipal College issued a pre-litigation procuratorial suggestion to Wuxi Education Bureau, urging it to strengthen the supervision of off-campus training institutions and protect students’ personal information.
After receiving the procuratorial suggestions, Wuxi Education Bureau set up an investigation team to conduct comprehensive investigation and management. According to the personal information data involved in the case, analyze and investigate the data usage of the two-level school registration data management system in urban areas, find out the risk points, and take centralized registration and filing for relevant information data. Accelerate the construction of network security measures, add MAN firewalls, and upgrade the protection level of data centers. Improve the data download process and leave traces throughout, and encrypt information such as student ID number and parents’ contact information. Strengthen the safety training of managers, organize principals, principals and network and information system security officers to conduct special training on network data security, and hold a network and information system security competition with more than 15,000 teachers in the city to enhance the awareness of network security in the education system. Strengthen the supervision of off-campus training institutions, focus on rectifying the illegal acquisition of student information marketing enrollment behavior, and include it in the annual inspection and credit management files, and smooth the channels for reporting complaints. We will comprehensively implement multi-departmental joint "double random and open" law enforcement inspections and improve the working mechanism of "Internet+education supervision". A training institution is listed in the list of abnormal loss of corporate domicile by the market supervision department, and B training institution cancels a position of Fang, changes the person in charge and obtains a school license. At the same time, Wuxi Education Bureau invested funds to transform the education metropolitan area network, and issued the Interim Measures for the Administration of Education Data in Wuxi to standardize the management of students’ personal information by education administrative departments and schools.
[Typical meaning]
Off-campus training institutions illegally obtain students’ personal information for marketing enrollment, which not only infringes on citizens’ personal information security, but also easily leads to various related crimes such as telecom fraud, which poses a major threat to the personal and property safety of students and parents and harms social public interests. Procuratorial organs use the function of administrative public interest litigation to urge the education administrative departments to fully perform their duties according to law. On the one hand, they timely plug the gaps, improve the management measures of civil air defense technology, and strengthen the protection of students’ personal information by themselves and the campus; On the other hand, strengthen the supervision of off-campus training institutions, protect students’ personal information from illegal infringement, and earnestly safeguard social public interests.
Case 5
The People’s Procuratorate of Lean County, Jiangxi Province urged and standardized the administrative public interest litigation case of government information disclosure.
[Keywords:]
Pre-litigation procedure of administrative public interest litigation   Government information disclosure   De-identification processing  
【 gist 】
In view of the situation that the administrative organs disclose citizens’ personal information that should not be disclosed when performing the functions of government information disclosure, the procuratorial organs urge the administrative organs to perform their duties and rectify according to law by issuing pre-litigation procuratorial suggestions to protect citizens’ personal information security.
[Basic case]
In May 2020, the Agriculture and Rural Bureau of Lean County, Jiangxi Province published four pieces of government information on the agricultural machinery purchase subsidies in the county from 2017 to 2019 in the "Government Information Disclosure" column of the official website of Lean County People’s Government. The information content not only includes the basic information of the purchase farmers’ name, purchase model, purchase quantity and subsidy amount, but also contains the personal information of farmers who have not been unmarked, which infringes on the personal information security of citizens.
【 Investigate and supervise the performance of duties 】
The People’s Procuratorate of Le ‘an County (hereinafter referred to as Le ‘an County Hospital) found clues to this case when logging on the official website of the county government, and filed an investigation on July 15, 2020. According to the investigation, in May 2020, the Agriculture and Rural Bureau of Le ‘an County successively produced four government information on agricultural machinery purchase subsidies, such as Detailed List of the First Batch of Agricultural Machinery Purchase in 2017, Information Form of the Second Batch of Settled Farmers in 2017, Information Form of Subsidized Farmers at County Level in 2018 and Information Form of Subsidized Farmers at County Level in 2019, and made them public on the official website of the county government "Government Information Disclosure-Le ‘an County Agriculture and Rural Bureau" The above-mentioned public information did not de-identify the contents of citizens’ personal information, but the personal information of relevant farmers, such as ID number, home address, bank account and mobile phone number, was completely disclosed, involving 1044 farmers (including some units).
Lean County Institute believes that according to the Resident Identity Card Law, the Regulations on the Openness of Government Information, and the Ministry of Agriculture and Rural Affairs’ Guidelines for the Openness of Grass-roots Government Affairs in the Field of Agricultural Subsidies and other relevant laws, regulations and documents, government information involving personal information such as citizen ID number and bank account number belongs to the content that is not disclosed according to law. As the issuing unit of government information on agricultural machinery purchase subsidies, the Agriculture and Rural Bureau of Le ‘an County failed to fulfill its responsibility to review the government information to be disclosed according to law, resulting in a large number of citizens’ personal information being leaked, which infringed on social public interests. On July 22, 2020, Le ‘an County Hospital issued a pre-litigation procuratorial proposal to the Agriculture and Rural Bureau of Le ‘an County, suggesting that it strengthen the review of the contents of government information disclosure and withdraw the government information that leaked citizens’ personal information in time. In order to eliminate the risk of personal information disclosure as soon as possible and prevent the damage from continuing to expand, Lean County Hospital requires the bureau to handle it according to law and reply in writing within 15 days.
After receiving the procuratorial suggestions, the Agriculture and Rural Bureau of Le ‘an County promptly withdrew the relevant information from the government website, and re-opened the contents involving personal information after de-labeling, and made a written reply to Le ‘an County Hospital on July 24, 2020, indicating that the government information will be disclosed in accordance with the law and regulations in the future to ensure the safety of citizens’ personal information.
[Typical meaning]
The information produced or obtained by administrative organs in the process of performing administrative functions should be disclosed in a timely and accurate manner according to laws and regulations, and the contents of the information to be disclosed should be reviewed to ensure that the legitimate rights and interests of citizens are not infringed. When the procuratorial organ discovers the risk of citizens’ personal information disclosure in the process of government information disclosure by the administrative organ, it can urge the administrative organ to carry out rectification by performing the procuratorial function of public interest litigation, so as to realize the "win-win, win-win and win-win" function of protecting citizens’ personal information security and disclosing government information according to law.
Case 6
The People’s Procuratorate of Hualong District, Puyang City, Henan Province urged the renovation of the decoration industry to disclose citizens’ personal information.
[Keywords:]
Administrative public interest litigation pre-litigation procedure harassment phone   Harassment SMS industry governance
【 gist 】
In view of the acts of leaking consumers’ personal information in real estate and decoration industries, which led to a large number of harassment of telephone message sales, the procuratorial organs urged relevant departments to perform their supervisory duties according to law through pre-litigation procuratorial suggestions, promoted industry governance, and effectively strengthened the protection of citizens’ personal information.
[Basic case]
Dong Moumou and other three people are staff members of Puyang Real Estate Management Trading Center, real estate company and decoration company. The three colluded with each other and used their position to illegally obtain more than 30 thousand pieces of personal information of citizens and buy and sell them. After the above-mentioned personal information was illegally leaked, the owners were frequently harassed by the decoration enterprises by telephone, which caused strong dissatisfaction among the masses and seriously affected their normal work and life.
【 Investigate and supervise the performance of duties 】
The People’s Procuratorate of Hualong District, Puyang City, Henan Province (hereinafter referred to as Hualong District Court) found that it may infringe on the public interest in the case of reviewing and prosecuting Dong Moumou and other three people for infringing citizens’ personal information, so it handed over the clue to the public interest litigation department for review. After the initial investigation, it filed an investigation on November 21, 2019. By issuing questionnaires and visiting the masses, the case-handling personnel found out that there were loopholes in the protection and management of personal information in the real estate management trading center, which led to frequent incidents of leaking consumers’ personal information in real estate and decoration industries, and harassing phone calls and text messages had seriously affected the work and life of the masses. According to the review of Hualong District Court, Puyang Real Estate Management Center has the responsibility to protect the personal information it manages according to the relevant provisions of the Law of People’s Republic of China (PRC) on the Protection of Consumer Rights and Interests and the Measures for the Administration of Building Decoration in Henan Province. Puyang Municipal Market Supervision Administration is responsible for protecting consumers’ personal information security; Puyang Decoration Industry Management Office and Hualong District Housing and Urban-Rural Development Bureau (hereinafter referred to as the District Housing and Construction Bureau) are responsible for the supervision and management of decoration practitioners in their jurisdictions, and both of them have the problem of inadequate supervision over the protection of consumers’ personal information. Hualong District Court issued a pre-litigation procuratorial proposal to Puyang Municipal Market Supervision Administration, requiring it to impose administrative punishment on the illegal acquisition of citizens’ personal information and the promotion in the form of harassing information and harassing phone calls. Issue pre-litigation procuratorial suggestions to the municipal real estate management center, demand strengthening information security management, and urge relevant departments and enterprises to establish rules and regulations to plug loopholes;To the city decoration industry management office and the District Housing and Construction Bureau issued a pre-litigation procuratorial proposal, suggesting to strengthen the supervision and publicity and education of decoration enterprises, guide their legal and standardized operations, and strengthen industry self-discipline. At the same time, a letter of work was sent to Puyang Interior Decoration Industry Association, suggesting to strengthen industry self-discipline according to law, standardize industry operation behavior, and effectively strengthen the protection of citizens’ personal information. After the procuratorial proposal was issued, Puyang Market Supervision Administration organized merchants within its jurisdiction to carry out centralized publicity on the protection of citizens’ personal information, and interviewed relevant enterprises to urge them to strengthen the protection of citizens’ personal information. The city real estate management center strengthens the education of employees, establishes and improves the information protection mechanism, and suggests that the higher-level real estate management department update the system and add a personal information protection module, so as to ensure clear rights and responsibilities of information inquiry, leave traces throughout the whole process and dynamic early warning. On December 10, 2019, the relevant administrative organs and decoration industry associations in Puyang City and Hualong District specially held a meeting on "Protecting citizens’ information security and standardizing business practices in Puyang’s architectural decoration industry". More than 20 decoration and decoration enterprises attending the meeting made statements and signed a commitment letter on the spot to "strengthen information security and conduct business legally". In May, 2020, Hualong District Hospital followed up the supervision and conducted a "look back" on the protection of citizens’ personal information, with 120 telephone calls and 200 questionnaires. Respondents generally believe that telemarketing in areas such as real estate decoration and decoration within their jurisdiction has been significantly reduced.
[Typical meaning]
In recent years, harassing phone calls and accurate fraud caused by the disclosure of consumers’ personal information have caused great troubles to the lives of ordinary people and threatened their property and even their lives. In this case, the procuratorial organ comprehensively adopts the mode of "criminal+public interest litigation" to find out the current situation, find out the crux, urge the administrative organ to improve and strengthen the supervision system through case handling and special rectification, guide relevant industries to optimize self-discipline and autonomy, and promote the safety protection of consumers’ personal information, which has achieved good social and legal effects.
Case 7
The People’s Procuratorate of Yuhang District, Hangzhou City, Zhejiang Province v. a network technology company.
[Keywords:]
Civil public interest litigation   APP illegally collects personal information   Third-party investigation and evaluation   Mediation agreement
【 gist 】
In view of the infringement of APP’s illegal collection and storage of personal information, the procuratorial organs can urge the administrative organs to perform their duties according to law through administrative public interest litigation, and at the same time, they can also file civil public interest litigation against the infringement of APP service providers, requiring the infringers to bear the tort liability and protect the legitimate rights and interests of many unspecified users in multiple dimensions.
[Basic case]
A music video teaching APP developed and operated by a network technology company in Hangzhou, Zhejiang Province, has some problems, such as collecting and using personal information without the user’s consent, collecting personal information unrelated to the services provided by it in violation of necessary principles, and not publicly collecting and using rules. It illegally collects and stores the user’s personal information, which infringes on the legitimate rights and interests of unspecified citizens, resulting in the violation of social public interests.
[Investigation and litigation]
In May 2019, the People’s Procuratorate of Yuhang District, Hangzhou City, Zhejiang Province (hereinafter referred to as Yuhang District Hospital) found in the special supervision action of citizens’ personal information protection that there were outstanding problems such as compulsory authorization of APP, excessive claim of rights, and over-range collection of personal information. More than 10 APPs developed and operated by enterprises within its jurisdiction violated laws and regulations to collect users’ personal information, issued pre-litigation procuratorial suggestions to relevant administrative organs, and urged administrative organs to rectify according to law and carry out special governance. In the process of follow-up supervision, Yuhang District Court found that the legitimate rights and interests of many infringed users could not be safeguarded through administrative public interest litigation, so it decided to solve this problem through civil public interest litigation. On October 16, 2019, Yuhang District Court filed an investigation into the illegal acts of infringing personal information by a music video teaching APP developed by a network technology company. By visiting and inquiring, extracting electronic data, and synchronizing video recording, it is found that the APP has the right to forcibly obtain "photos, media content and files on the device" and the number of mobile phone devices, which involves obtaining and storing users’ personal information in violation of laws and regulations. More than 10 million pieces.
In order to further determine the consequences of public welfare damage, Yuhang District Hospital commissioned a third-party agency to conduct social surveys. Nearly 90% of the respondents believed that personal information was infringed on their normal life and work. Demonstration meetings were organized twice, inviting NPC deputies, CPPCC members, Internet industry representatives, experts and scholars from universities, and technical personnel from administrative organs to conduct special discussions and demonstrations on issues such as the definition of network infringement, the scope of citizens’ personal information, and the determination of litigation requests, and reached a consensus that the illegal collection of personal information by this APP has infringed on the rights and interests of unspecified majority of personal information, resulting in damage to social public interests, and public interest litigation should be initiated by the procuratorate.
Yuhang District Hospital has announced that there is no legal institution or relevant organization to file a lawsuit. On June 23, 2020, Yuhang District Court filed a civil public interest lawsuit in Hangzhou Internet Court, suing the defendant, a network technology company, to stop collecting, storing and using personal information illegally and publicly apologize. On September 9 of the same year, the court held a public hearing to hear the case. During the trial, the prosecutor of public interest litigation presented evidence such as electronic data of personal information collected by APP in violation of laws and regulations, and fully expounded the damage of social public interests. The defendant agreed to fulfill all the litigation requests put forward by the procuratorate. The two sides reached a mediation agreement in court: the defendant immediately deleted more than 11 million pieces of personal information of all users collected and stored illegally; Apologize publicly in the "Rule of Law Daily" and the homepage of the APP involved in the case; I promise to operate legally in the future. If there is any violation of the agreement, I will voluntarily pay a penalty of 500,000 yuan for the public welfare expenditure of the national personal information protection public welfare fund.
After reaching a mediation agreement, Yuhang District Hospital introduced a third-party representative for evaluation, and a testing organization recognized by the network information department tested the rectification situation to ensure that the mediation agreement was implemented in place. On November 18, 2020, the contents of the mediation agreement were fully fulfilled after the follow-up supervision by the procuratorate.
[Typical meaning]
Citizens face the problems of difficulty in obtaining evidence and high cost of safeguarding rights in the face of APP infringement, and it is difficult to obtain effective relief through private interest litigation. In response to people’s livelihood demands, the procuratorial organs urged the administrative organs to supervise and protect the safety of citizens’ personal information according to law through administrative public interest litigation. At the same time, they investigated the infringement responsibility of APP service providers through civil public interest litigation to protect citizens’ personal information from further infringement. At the same time, based on the development interests of the enterprise, the procuratorial organ, on the premise of consulting the network information department and introducing third-party testing, realizes all the litigation purposes by mediation, and obtains the maximum benefit of handling cases at the lowest cost.
Case 8
The People’s Procuratorate of Baoding City, Hebei Province v. Li, a civil public interest lawsuit against consumers’ personal information and rights.
[Keywords:]
Civil public interest litigation   Consumer fraud   Electronic data investigation and evidence collection   Punitive damages
【 gist 】
In view of the illegal acquisition of consumers’ personal information and consumer fraud, the procuratorate filed a punitive damages lawsuit, increased the punishment for infringing consumers’ personal information and rights, and safeguarded consumers’ personal information security and legitimate rights and interests.
[Basic case]
Since 2017, Li has illegally obtained more than 12.9 million pieces of personal information including names, telephone numbers, addresses, etc., and cooperated with others to illegally sell more than 19,000 pieces of personal information for profit. From January 2018 to April 2019, Li used the illegally obtained personal information of citizens, hired telephone customer service to call marketing harassment calls in batches, and in the name of collectible companies, he used ways such as exaggerating the value and appreciation space of collectibles to trick consumers into buying products such as kidney treasure tablets, commemorative books and commemorative coins, with a total sales price of RMB554,605.
[Investigation and litigation]
The People’s Procuratorate of Baoding City, Hebei Province (hereinafter referred to as Baoding City Hospital) found that Li was convicted of infringing citizens’ personal information while using illegally obtained citizens’ personal information for consumer fraud. With the approval of the People’s Procuratorate of Hebei Province, Baoding City Hospital filed an investigation on November 8, 2019. During the investigation, Baoding City Court found out the fact that Li illegally obtained and sold personal information by collecting criminal investigation files, reviewing electronic data and asking respondents and witnesses. By entrusting the public security organs to collect 46 consumer statements by relying on the off-site investigation platform, and reviewing telephone customer service testimony, voice audio and commodity inspection reports, it was confirmed that Li used personal information to conduct telephone harassment and fraud in batches and randomly; By collecting the courier company’s express delivery and receipt records, fund settlement documents and Li’s bank account flow data, and entrusting an accounting professional analysis report, the amount of Li’s consumer fraud was found out. At the same time, Baoding City Hospital invited experts from Hebei University Public Interest Litigation Research Base to demonstrate the case and conduct a questionnaire survey. Both the expert argumentation and the survey results support the procuratorial organ to file a civil public interest lawsuit against Li’s infringement and file a punitive damages lawsuit.
Baoding Municipal Hospital made a public announcement and consulted the opinions of Hebei Consumer Rights Protection Committee. No organ or relevant organization stipulated by law filed a lawsuit. On July 20, 2020, Baoding City Court filed a civil public interest lawsuit with Baoding Intermediate People’s Court, requesting that the defendant Li be ordered to pay three times punitive damages totaling RMB 1,663,815. Take effective measures to delete all illegally held personal information data of citizens; Apologize publicly in the national media.
On November 4, 2020, Baoding Intermediate People’s Court held a public hearing to hear the case. During the trial, the prosecutor of public interest litigation presented and read the above-mentioned evidence, which proved that Li illegally obtained and sold citizens’ personal information, and used the illegally obtained citizens’ personal information for consumer fraud, infringing on citizens’ personal information security and consumers’ legitimate rights and interests, and damaging social public interests. On December 30, 2020, the Baoding Intermediate People’s Court made a judgment and supported all the litigation requests of the procuratorate. At present, the judgment has come into effect.
[Typical meaning]
Personal information disclosure and telemarketing fraud seriously infringe on citizens’ personal information security and consumers’ legitimate rights and interests, which are the pain points of people’s livelihood. In this case, the procuratorial organ, through expert argumentation and questionnaire survey, filed a punitive damages public interest lawsuit against the illegal acquisition and sale of citizens’ personal information and the use of personal information for consumer fraud, which has a positive leading, demonstrating and guiding role in fully utilizing the function of public interest litigation to punish and prevent the damage to public interest in the field of personal information protection and truly realizing the purpose of "making the offenders too painful to commit crimes again".
Case 9
Shanghai Baoshan District People’s Procuratorate v. H Technology Co., Ltd., Han Moumou and others.
[Keywords:]
Criminal incidental civil public interest litigation   The responsibility of network operators   Close the website   deleted data
【 gist 】
In view of the criminal acts of internet service providers and internet users infringing citizens’ personal information, and the situation that network operators fail to perform their social management duties according to law, the procuratorial organs may add them as defendants in incidental civil public interest litigation according to law when they file criminal incidental civil public interest litigation, requiring them to bear tort liability.
[Basic case]
H Technology Co., Ltd. (hereinafter referred to as H Company) is mainly engaged in online games and related product research and development and technical consultation, with Han Moumou as the manager. In February 2019, the company set up "Jimai. com" to provide a platform for data and information transactions, and hired Yang Moumou, Huang Moumou and Guan Moumou to participate in the operation. In the meantime, Han Moumou knows that there is a lot of personal information in the data uploaded by users, and still provides a platform for illegal trading of personal information. The website involves more than 370,000 pieces of accurate and useful personal information, and the number of transactions reaches more than 30,000 pieces. Software engineer Guan Moumou knows that the website has the behavior of buying and selling personal information, and still helps push keyword search. In February 2019, Chen registered as a member of "Jimai.com" and uploaded 5757 pieces of data information such as Taobao buyer’s name, mobile phone number and delivery address obtained when he took office in "a company’s Tmall flagship store", hoping to sell it for profit.
[Investigation and litigation]
In September 2019, the Shanghai Municipal People’s Procuratorate (hereinafter referred to as the Shanghai Municipal Hospital) learned from the case handling system and media reports that the Shanghai public security organs had cracked a major case of trafficking in personal information. After judgment, the clues of the case were handed over to the Baoshan District People’s Procuratorate (hereinafter referred to as the Baoshan District Hospital). After filing the case, Baoshan District Court invited experts to assist in handling the case, sorting out and cross-comparing the QQ chat records, more than 300,000 personal information of citizens, bank card transaction details, transaction ledgers and other documents involved in the case one by one, finding out the amount of illegal profits and determining the amount of compensation. Baoshan District Court believes that although H Company has not been investigated for criminal responsibility, it should bear civil tort liability.
Baoshan District Hospital has announced that there is no legal organ or relevant organization to file a lawsuit. On November 25, 2019, Baoshan District Court filed a public prosecution against Han Moumou and others for the crime of infringing citizens’ personal information. At the same time, criminal incidental civil public interest litigation was filed against H company, Han Moumou and others for their actions against public interests. In view of the fact that the personal information of citizens stored in the website server and QQ in this case is still in danger of being spread and traded, Baoshan District Court actively explored the way of assuming tort liability. In addition to asking the defendant to apologize to the public in the national news media and compensate for the losses, it also filed a lawsuit with the court for closing the website, canceling the QQ number for infringement and permanently deleting the personal information data of citizens stored in QQ.
Baoshan District People’s Court made a first-instance judgment on March 27, 2020 after hearing in public. In the incidental civil public interest litigation, it ruled that the defendants H Company, Han Moumou, Yang Moumou and Guan Moumou jointly compensated for losses of RMB 3,900, and the defendant Huang Moumou was jointly liable for compensation within the above compensation of RMB 3,600. Company H closes the website of "Numai.com"; H Company, Han Moumou, Yang Moumou, Huang Moumou and Chen Moumou cancel the QQ number used to buy and sell citizens’ personal information, and permanently delete the citizens’ personal information data stored in QQ; H Company, Han Moumou, Yang Moumou, Huang Moumou, Guan Moumou and Chen Moumou apologized to the public in the national media. After the judgment of the first instance, the defendant in the criminal case appealed, and the judgment of the second instance upheld the original judgment.
In order to promote the source governance, Baoshan District Court transferred the suspected illegal clues of "a company’s Tmall flagship store" to the Baiyun District People’s Procuratorate of Guangzhou City, Guangdong Province (hereinafter referred to as Baiyun District Court), and carried out inter-provincial cooperation on investigation and evidence collection. After reviewing the clues, Baiyun District Court filed a case with administrative public interest litigation, and held consultations with the administrative organs responsible for supervision and management. The administrative organ determined that the operating company of a company’s Tmall flagship store had obvious loopholes in implementing the preventive measures of the network security information system, so it filed an investigation on the company and issued early warning information announcements for key industries such as consulting, real estate agency, automobile sales and insurance to carry out system governance.
[Typical meaning]
The determination of the defendant in criminal incidental civil public interest litigation cannot be confined to the scope of criminal defendant, but the infringer should be specified in combination with the individual case. By investigating the civil tort liability of network operators, the network operators are warned to implement the responsibility of network security protection, strengthen internal security management and standardize operating procedures. For the website server involved in the case, if the citizen’s personal information stored in QQ can’t be eliminated by traditional seizure, the procuratorial organ can file a petition to close the website, cancel the QQ number used for infringement and permanently delete the citizen’s personal information data stored in QQ, so as to completely eliminate the danger. In view of the cross-regional characteristics of network infringement, procuratorial organs cooperate with relevant administrative organs to deal with violations of personal information, which is conducive to the systematic governance, comprehensive governance and source governance of public interest damage in the Internet field, and highlights the unique value of public interest litigation.
Case 10
People’s Procuratorate of Xixiu District, Anshun City, Guizhou Province v. Xiong Moumou and others.
[Keywords:]
Criminal incidental civil public interest litigation   Public hearing   Pay compensation
【 gist 】
In view of the illegal acquisition and sale of citizens’ personal information on the Internet, which harms the public interests, the procuratorial organ, while investigating the criminal responsibility of the violator according to law, filed a criminal incidental civil public interest lawsuit according to law, demanding that it pay compensation and publicly apologize.
[Basic case]
In October 2018, Xiong Moumou illegally obtained a large amount of citizens’ personal information through technical software and sold it online to others for profit. In December of the same year, Xiong taught his girlfriend Wang Moujia, and Wang Moujia assisted him in selling citizens’ personal information online for common profit. In the meantime, Wang Moujia taught it to his younger brother Wang Mouyi, so that Wang Mouyi also made a profit by selling citizens’ personal information online. By April 2019, Xiong Moumou, Wang Moujia and Wang Mouyi had made a total profit of more than 700,000 yuan by illegally selling citizens’ personal information.
[Investigation and litigation]
When the People’s Procuratorate of Xixiu District, Anshun City, Guizhou Province (hereinafter referred to as Xixiu District Hospital) examined the case of Xiong Moumou and other three people suspected of infringing citizens’ personal information, it found that the actions of Xiong Moumou and other three people might harm the public interest, so it transferred the clues of the case to the public interest litigation procuratorate for review. On November 13, 2019, Xixiu District Court filed a case against three people, including Xiong Moumou, for criminal incidental civil public interest litigation against citizens’ personal information. This case infringes on citizens’ personal information in a large amount, and the amount of illegal profits is large. In order to ensure sufficient evidence, Xixiu District Court intervened and guided the investigation in advance when handling the case, fixed Xiong Moumou and other three people in time to sell personal information of citizens and related documentary evidence and electronic data of illegal profits, and found out the facts that infringed on the personal information security of many unspecified people, and invited deputies to the District People’s Congress, CPPCC members, people’s supervisors and grassroots representatives as hearing officers to conduct public hearings. After listening to the introduction of the case, the legal basis for filing a criminal incidental civil public interest lawsuit and inquiring about related issues, the hearing officer agreed that Xixiu District Court should file a criminal incidental civil public interest lawsuit against Xiong Moumou and other three people for infringing citizens’ personal information.
Xixiu District Court has announced that there is no legal organ or relevant organization to file a lawsuit. On June 1, 2020, Xixiu District Court filed a criminal incidental civil public interest lawsuit with Xixiu District People’s Court, requesting that three people, including Xiong Moumou, the defendant of the criminal incidental civil public interest lawsuit, completely delete all illegally obtained personal information of citizens; Pay compensation totaling more than 700,000 yuan; Apologize publicly in the national media.
On July 23, 2020, Xixiu District People’s Court held a public hearing to hear the case. During the trial, the public prosecutor and the public interest litigation prosecutor presented and read out the defendant’s confession, witness testimony, victim’s statement, expert opinion and inspection record in this case, which proved that Xiong Moumou and other three people illegally obtained and sold a large amount of citizens’ personal information, infringing on citizens’ legitimate rights and interests and damaging social public interests. The Xixiu District People’s Court sentenced three defendants, including Xiong Moumou, to the crime of infringing citizens’ personal information and sentenced them to fixed-term imprisonment and fines. At the same time, they all supported the request for incidental civil public interest litigation put forward by the procuratorate. After the judgment of the first instance, Xiong Moumou and Wang Moujia appealed, and the court of second instance upheld the judgment of incidental civil public interest litigation. The judgment in this case has come into effect and been transferred for execution, and the compensation will be deposited into the special fund account for public interest litigation jointly established by the procuratorial organ and the financial department.
[Typical meaning]
Illegal acquisition and sale of citizens’ personal information through the Internet has led to the disclosure of many unspecified citizens’ personal information, which has infringed on the safety of citizens’ personal information and harmed the public interest. As a representative of public interests, procuratorial organs can bring criminal incidental civil public interest litigation against violators who infringe citizens’ personal information according to law, demand them to bear the responsibility of public interest damage such as compensation for losses, increase the cost of illegal crimes against citizens’ personal information, and comprehensively safeguard citizens’ personal information security.
Case 11
Guang Ningxian People’s Procuratorate v. Tan Moumou and others (case of criminal incidental civil public interest litigation for infringing citizens’ personal information).
[Keywords:]
Criminal incidental civil public interest litigation   Owner’s personal information protection   Trial observation   Industry governance
【 gist 】
The procuratorial organs take the criminal incidental civil public interest litigation of infringing citizens’ personal information as the breakthrough point, and judge the defendant to bear the tort liability of stopping the infringement and eliminating the danger through litigation, and urge the administrative departments to perform their duties in full accordance with the law, take the case as a lesson, promote the standardized governance of the industry, and comprehensively protect the safety of citizens’ personal information.  
[Basic case]
From 2018 to July 2020, five people, including Tan Moumou, illegally obtained a total of 13,784 pieces of personal information of owners of several residential quarters in Guang Ningxian, Guangdong Province by selling, purchasing and exchanging, and set up a WeChat group to share and buy the obtained owner information.
[Investigation and litigation]
On September 22nd, 2020, Guang Ningxian Public Security Bureau transferred five people, including Tan Moumou, to Guang Ningxian People’s Procuratorate (hereinafter referred to as Guang Ningxian Institute) for examination and prosecution. During the performance of the duties of approving the arrest, Guang Ningxian Court found that Tan Moumou and others had infringed on citizens’ personal information, which might harm the public interests. On August 18, 2020, they filed an investigation as a criminal incidental civil public interest litigation case. On the basis of fully grasping the evidence of criminal cases, the investigators conducted investigation and verification by asking the defendants and visiting relevant departments and enterprises, so as to reinforce the evidence of civil infringement and build a complete evidence chain for filing criminal incidental civil public interest litigation. After examination, Guang Ningxian Institute believes that the information of the community owner obtained by the defendant Tan Moumou and others is enough to identify the personal identity of citizens and belongs to personal information that affects personal and property safety. The above-mentioned defendants not only violated the personal rights of the owners and their residents, such as personal information and privacy, but also had the possibility of endangering their property safety and damaging the public interests. In addition to criminal punishment, they should also bear the corresponding responsibility for public damage.
According to the announcement of Guang Ningxian Hospital, there is no legal institution or relevant organization to file a lawsuit. On November 12, 2020, Guang Ningxian Institute filed a criminal incidental civil public interest lawsuit with the people’s court, requesting that five defendants, including Tan Moumou, be ordered to dissolve the WeChat group used to collect and buy citizens’ personal information, delete citizens’ personal information data stored in WeChat, apologize in the media, and entrust the telecommunications department to send risk warning messages to the infringed.
On December 4, 2020, the Guang Ningxian People’s Court held a hearing on the case. The procurator-general of Guang Ningxian Court attended the court to perform his duties, and the president of the county court served as the presiding judge. Deputies to the county people’s congress, CPPCC members, responsible persons of public security organs and housing construction departments, and representatives of county real estate enterprises and property service enterprises were invited to observe the trial, which was also made public to the public through live webcast. After trial, the court ruled that five defendants, including Tan Moumou, committed the crime of infringing citizens’ personal information, sentenced them to fixed-term imprisonment and fines respectively, and all supported the request for incidental civil public interest litigation put forward by the procuratorate, which has been fully fulfilled.
In view of the weak links in industry supervision exposed in this case, Guang Ningxian Institute issued a pre-litigation procuratorial proposal to Guang Ningxian Municipal Market Supervision Administration, and held a hearing to urge it to perform its duties according to law and do a good job in protecting citizens’ personal information. The county market supervision and management bureau has imposed administrative punishment on the decoration enterprises involved in the case according to law. At the same time, Guang Ningxian Institute issued a procuratorial proposal on social governance to Guang Ningxian Housing and Urban-Rural Development Bureau, and the County Housing and Urban-Rural Development Bureau held a rectification meeting of property management enterprises in the county on the day of the trial of this case, and invited prosecutors to carry out education on the rule of law to warn property management enterprises to take measures to prevent citizens’ personal information from being improperly used.
[Typical meaning]
In the Internet age, violations of citizens’ personal information frequently occur, seriously infringing on the legitimate rights and interests of the people and social public interests. Procuratorial organs adopt the mode of "one case, three investigations" in dealing with illegal crimes of infringing citizens’ personal information, comprehensively grasp the criminal circumstances of criminal cases, the infringement of civil public interest litigation cases and the supervision and performance of duties by administrative organs and relevant operating entities, and comprehensively use the functions of criminal prosecution and public interest litigation to crack down on illegal and criminal acts, making up for the relative difficulty of citizens’ individual rights protection and effectively safeguarding social public interests. At the same time, through case handling to promote the rectification of similar cases, combined with trial observation and other means, the supervision responsibilities of administrative organs and related operating entities were activated by judicial openness, and good social governance results were achieved.
On April 22nd, the Supreme People’s Procuratorate released a typical case of public interest litigation for personal information protection of procuratorial organs, and Hu Weilie, director of the Eighth Procuratorate of the Supreme People’s Procuratorate, answered questions from reporters.
1. What are the main considerations for the procuratorial organs to take personal information protection as a new field to expand the scope of public interest litigation cases?
A:As we all know, the Internet, new formats and new life in the era of big data, while bringing business opportunities and convenience, are also accompanied by difficulties in supervision and rights protection. "Who moved my personal information" has become everyone’s trouble and anxiety. The telecommunication network fraud that leaked personal information flows through the black industrial chain is a frequent and high-incidence crime that the state has cracked down on. The "big data killing" bred by the abuse of personal information has also been included in the risk prevention and control focus of the central government to strengthen anti-monopoly and prevent the disorderly expansion of capital. Strengthening the protection of personal information is closely related to personal interests and is an important part of the people’s needs for a better life in the new era; It involves national interests and social public interests at the same time, which is a difficult problem that must be solved to promote the modernization of national governance system and governance capacity.
On November 8, 2018, Zhang Jun, the Procurator-General of the Supreme People’s Procuratorate, pointed out in his speech at the fifth sub-forum of "Personal Information Protection in the Big Data Era" in world internet conference that "procuratorial organs should explore the procuratorial work of public interest litigation in the field of personal information protection and promote all-round judicial protection." The Civil Code, which came into effect on January 1, 2021, strengthened the legal protection of personal information. Procurator-General Zhang Jun emphasized that the promulgation and implementation of the Civil Code should be the driving force to strengthen the procuratorial work of public interest litigation and fulfill the duties and missions of public interest representatives. We will implement the provisions of the Civil Code on strengthening citizens’ privacy and personal information protection, actively and steadily expand the scope of handling public interest litigation, and perform their duties and responsibilities according to law with a highly responsible attitude towards the party and the people.
First, if the people want something, I will respond. In recent years, the motions, suggestions and proposals on "strengthening the protection of personal information" in the "two sessions" of the country have paid more and more attention to strengthening the protection of the rule of law. Procuratorial public interest litigation, which has been fully implemented since July 2017, has achieved remarkable results with the mission of representing public interests and protecting a better life, and has also placed high hopes on the protection of personal information. Up to now, 25 provincial people’s congress standing committees have made decisions on strengthening procuratorial public interest litigation, among which 19 provinces explicitly require procuratorial organs to actively and steadily carry out public interest litigation in the field of personal information protection. The Supreme People’s Procuratorate adheres to the people-centered principle and actively responds to people’s concerns. In the "Guiding Opinions on Actively and Steadily Expanding the Scope of Public Interest Litigation Cases" issued in September 2020, it clearly regards the protection of personal information as the focus of handling cases in the field of network infringement, and puts forward requirements for implementing the special decision of the Standing Committee of the Provincial People’s Congress.
Second, conform to the legislative orientation and accumulate judicial experience. The 28th meeting of the 13th the National People’s Congress Standing Committee (NPCSC) was held from April 26th to 29th, 2021. The deliberations included the draft data security law and the draft personal information protection law, which showed a strong national will. Focusing on the legislative work plan of the National People’s Congress Standing Committee (NPCSC), the Supreme People’s Procuratorate, while continuing to strengthen the criminal judicial protection of personal information, focuses on solving the outstanding problems in law enforcement and justice, guides the national procuratorial organs to focus on handling public interest litigation cases that conform to the legislative orientation, and establishes a sound institutional mechanism with real typical cases and handling cases, so as to provide judicial practice basis for promoting legislative revision.
Third, coordinate administrative supervision and deepen comprehensive management. Functional departments such as the Central Network Information Office, the Ministry of Industry and Information Technology, the Ministry of Public Security, and the General Administration of Market Supervision continued to carry out special treatment for infringements such as the illegal collection and use of personal information by APP, and introduced regulatory measures such as cybersecurity review measures. The Provisions on the Scope of Necessary Personal Information for Common Mobile Internet Applications, which is highly concerned by the society, will be implemented on May 1, 2021. These regulatory measures provide a target for procuratorial organs to strengthen legal supervision. Procuratorial organs, by handling administrative public interest litigation cases, urge and cooperate with relevant administrative organs to strictly implement regulatory measures, plug loopholes and prevent risks; By handling civil public interest litigation, including criminal incidental civil public interest litigation cases, the illegal cost of the subject of tort liability is increased, the damaged public interest is repaired, and the source governance and comprehensive governance are promoted.
2. What achievements have the procuratorial organs made in handling personal information protection public interest litigation cases?
A:First, the variety of cases has promoted the protection of personal information in many fields and industries. In the typical cases released this time, administrative public interest litigation cases involve personal information supervision and government information disclosure of administrative organs such as education, market supervision, public security, online information, agriculture and rural areas; It involves the disclosure of personal information such as express delivery, medical institutions and off-campus training institutions. Civil public interest litigation cases include Internet companies’ illegal collection of personal information, illegal acquisition of personal information and consumer fraud. Criminal incidental civil public interest litigation cases involve the illegal acquisition and trading of personal information through different means, such as technical software and property services. In addition to cracking down on the criminal acts of infringing citizens’ personal information according to law, the procuratorial organs also take the network operators as co-defendants and demand to bear the responsibility for public interest damage.
The second is to comprehensively use criminal prosecution and public interest litigation to increase the illegal cost of infringement. While investigating criminal responsibility according to law, we should also investigate the responsibility for public welfare damage, and strengthen warning through high fines and compensation for public welfare damage to prevent potential illegal and criminal acts. The People’s Procuratorate of Xixiu District, Anshun City, Guizhou Province filed a criminal incidental civil public interest lawsuit against Xiong Moumou, Wang Moujia and Wang Mouyi according to law, requesting the court to order the three defendants to completely delete all illegally obtained personal information of citizens, publicly apologize in the national media, and pay compensation of more than 700,000 yuan according to illegal profits. The court sentenced three defendants, including Xiong Moumou, to fixed-term imprisonment for the crime of infringing citizens’ personal information, and imposed fines ranging from 50,000 to 600,000 yuan. At the same time, it supported all the public interest litigation requests put forward by the procuratorate.
The third is to effectively activate the protection mechanism and strengthen cooperation with administrative organs. In view of the problems that some administrative organs do not pay attention to the protection of personal information and their supervisory responsibilities are not in place, the procuratorial organs urge them to perform their duties through consultations, public hearings and procuratorial suggestions, so as to unite the supervisory consensus of various departments and enhance the joint efforts of supervision. At the same time, case handling will promote the construction of relevant industry governance and long-term mechanism, and help improve governance efficiency. After the People’s Procuratorate of Lucheng District, Wenzhou City, Zhejiang Province handled the administrative public interest litigation case of personal information protection of patients, the Joint District Public Security Bureau, the District Market Supervision Bureau and the District Education Bureau issued "Several Opinions on Strengthening Law Enforcement and Judicial Cooperation on Personal Information Protection in the Consumer Field (Trial)", focusing on education and training, maternal and child services, real estate rental and sales, car sales, decoration and decoration, beauty and fitness, travel and accommodation, website or APP operation and other industries and fields where violations of personal information are frequent, to strengthen consumer personal information protection.
The fourth is to enhance the sense of responsibility of relevant enterprises to protect citizens’ personal information. If an Internet enterprise fails to fulfill its personal information management and protection obligations, the procuratorial organ shall require it to bear the responsibility of public interest damage through public interest litigation, and promote it to implement the main responsibility of the enterprise. The People’s Procuratorate of Yuhang District, Hangzhou City, Zhejiang Province found that the music video teaching APP developed by a network technology company illegally collected, stored and used personal information, and filed a civil public interest lawsuit with the court according to law. After mediation, the company voluntarily carried out a comprehensive rectification of the APP software, deleted all the user’s personal information collected and stored in violation of laws and regulations, publicly apologized, and promised not to infringe on the user’s personal information. For the subsequent rectification of the APP software, the procuratorial organ introduced a third-party representative to evaluate it, and it was allowed to be put back on the shelves after passing the test.
3. What are the difficulties in prosecuting public interest litigation for personal information protection? What are the key arrangements for the next step?
A:First, the supply of legislation is insufficient. On the one hand, the protection of personal information belongs to the new field of procuratorial public interest litigation at present, and the entity and procedural provisions of procuratorial organs in handling such cases, such as filing standards, prosecution conditions and litigation requests, have not been standardized, and differences are easy to arise in the implementation of procuratorial suggestions and the acceptance of prosecution cases. On the other hand, all kinds of illegal situations involving personal information, legal responsibilities and regulatory responsibilities of administrative organs need to be clearly defined by law, so that procuratorial organs can accurately supervise and correct violations.
Second, the means of investigation and verification are lacking. Most of the violations of personal information infringement are related to the Internet, big data, artificial intelligence and other high-tech, showing the characteristics of cross-zoning, anonymity, stakeholder-type, full chain and so on. The procuratorial organs need corresponding investigation and verification means to discover, collect, fix, judge and identify relevant electronic evidence. In practice, it mainly relies on public security organs to obtain evidence in criminal investigation procedures, or invites relevant Internet platforms to provide it. It is relatively difficult for procuratorial organs to obtain evidence from relevant administrative organs, enterprises and personnel on their own, which affects the progress and effectiveness of handling cases.
Third, it is difficult to identify and repair public welfare damage. In civil public interest litigation, it is difficult to quantify the losses caused by infringement of personal information, and there is a lack of unified and standardized evaluation and appraisal methods and standards for determining damages. To recover, screen and delete personal information involved in the case requires corresponding technical means and human and material resources, and to advocate and support litigation requests to stop infringement, remove obstacles and eliminate dangers, and requires technical solutions or alternatives.
In the next step, the procuratorial organs will take the opportunity of the National People’s Congress Standing Committee (NPCSC)’s deliberation on the draft data security law and personal information protection law, pay close attention to the legislative progress and the implementation of relevant administrative supervision measures, continue to follow up and supervise the outstanding problems in the field of personal information protection that seriously harm the public interest, strive to handle more influential typical cases, and contribute to the procuratorial power of public interest litigation for personal information protection.
First, assist the legislature to revise and improve the procuratorial public interest litigation clause in the personal information protection law. Following the development law of procuratorial public interest litigation system, combining with the typical cases of personal information protection public interest litigation and the experience accumulated by local procuratorial organs in handling cases, this paper studies and puts forward legislative suggestions on separating civil public interest litigation clauses and administrative public interest litigation clauses in personal information protection law.
The second is to strengthen cooperation with administrative organs. Focus on solving the common types of mobile Internet applications, face recognition technology, express logistics industry and personal information protection for special groups such as the elderly, minors and women, further strengthen the joint efforts of law enforcement and justice, and accurately carry out source management and comprehensive management.
The third is to give full play to the advantages of procuratorial integration in handling cases. Dealing with the network of personal information public welfare damage by procuratorial integration. Accelerate the construction of the procuratorial command center for public interest litigation of the national procuratorial organs, take the Supreme People’s Procuratorate and the provincial procuratorates to handle cases by themselves, intensify the work of assignment and supervision, and handle major supervision matters as cases, so as to give full play to the procuratorial functions of criminal prosecution and public interest litigation, highlight the handling of national and influential public interest litigation cases for personal information protection, and strive to cut off the interest chain between personal information infringement and telecommunication network fraud.
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