Article 43: Where any country or region employs discriminatory prohibitions, restrictions, or other similar measures against the People's Republic of China in the protection of personal information, the People's Republic of China may employ reciprocal measures against that country or region on the basis of actual circumstances.
【Purpose of the Article】
This article is about the adoption of reciprocal countermeasures.
[Understanding of the article]
This provision reflects the principle of reciprocity and non-discrimination in the field of personal information protection, and while protecting the rights and interests of personal information, it also clarifies in the form of legal provisions that China may take corresponding countermeasures against discriminatory measures in relevant countries and regions, providing a domestic legal basis for the mainland to take countermeasures in the field of personal information protection according to the actual situation.
1. What is reciprocity?
For countries and regions that have taken unreasonable measures against the mainland in the protection of personal information, this article provides that the mainland may take corresponding reciprocal measures based on the actual situation. The principle of reciprocity is a basic principle in international relations and a basic policy for handling international affairs with foreign countries, mainly for the sake of mutual respect for sovereignty among countries and for the sake of equal exchanges between countries. On the one hand, it is an oath of sovereignty, which can effectively safeguard the sovereignty of the mainland and protect the legitimate rights and interests of mainland citizens on the other hand. The principle of reciprocity has the following implications: (1) This principle applies to situations where foreign countries and regions adopt discriminatory prohibitions, restrictions or other similar measures against the mainland, but does not apply to the granting of rights. Even if citizens or organizations in mainland China enjoy more rights in the protection of personal information in that country or region in accordance with foreign laws, that country or region cannot require mainland China to grant the same rights to citizens or organizations in that country or region. Therefore, reciprocity is the reciprocity of the restrictions on the protection of personal information. (2) Citizens and organizations of countries or regions outside the territory have the same rights as citizens and organizations in mainland China in terms of personal information protection. That is, the mainland implements "national treatment" for citizens and organizations in the country or region. If the rights granted to mainland citizens or organizations in terms of personal information protection are lower than the standards granted to citizens and organizations in mainland China, it constitutes a restriction on the protection of personal information of mainland citizens and organizations in that country. This kind of restriction is discriminatory against mainland citizens or organizations, whether in the form of legislation or judicial proceedings, so the mainland can also impose restrictions on the protection of personal information of citizens or organizations in that country or region in the mainland according to the actual situation.
2. Prohibitions, restrictions or other similar measures
The purpose of this legislation is not to take the lead in prohibiting, restricting or other similar measures against other countries or regions, but to effectively safeguard the legitimate rights and interests of the mainland in the field of personal information protection, to give appropriate responses to those countries that have adopted discriminatory prohibitions and restrictions against the mainland, and to safeguard the interests of mainland citizens and national interests. On the basis of drawing on international rules, this article stipulates that under certain conditions, the mainland may take corresponding reciprocal measures against other countries or regions in terms of personal information protection. Discriminatory measures adopted by any country or region include prohibitions, restrictions or other similar measures, and there are three restrictions on the adoption of "reciprocal measures" in mainland China: first, the discriminatory prohibitions, restrictions or other similar measures occur in the field of personal information protection; Second, other countries and regions have adopted discriminatory prohibitions, restrictions or other similar measures; Third, it should be based on the needs of the actual situation. "On an as-case-by-case basis" and "reciprocal measures" that can be taken are closely linked. The principle of reciprocity is flexible in its application, and the principle of reciprocity stipulated in the Personal Information Protection Law of the mainland is only a legal principle, while the personal information protection systems of China and other countries or regions are quite different and cannot be fully corresponding, so the mainland should be reciprocal according to the specific circumstances. Among the various free trade agreements reached by the mainland, only the China-Australia and China-South Korea free trade agreements have made principled provisions on the right to data and information protection, but have not made specific provisions, nor have they reached a consensus on the regulation of cross-border data flows. Generally speaking, the cooperation between the mainland and other countries and regions or regional organizations on the cross-border flow of personal data needs to be deepened and strengthened.
[Applicable Provisions]
In international exchanges, the relations between major countries should be handled on the basis of equality and reciprocity. The mainland has always adhered to the five cardinal principles of mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other's internal affairs, equality and mutual benefit, and peaceful coexistence, and has developed friendly relations with all countries in the world on this basis. Theoretically, in the event of discriminatory prohibitions, restrictions or other similar measures against the mainland in the protection of personal information, the mainland may resolve them through bilateral consultations, other dispute resolution mechanisms provided for in regional or bilateral agreements, but at the same time reserves the right to implement countermeasures.
The principle of reciprocity is embodied in all aspects of politics, economy and society, not only in the judicial field, but also in the fields of foreign trade, foreign investment, and data security. For example, when hearing foreign-related civil cases, the procedural rights of foreign citizens, enterprises and organizations are not restricted first, but the procedural rights of foreign parties are ensured in accordance with the law. However, if a foreign court restricts the civil litigation rights of mainland citizens and legal persons in that country, it shall adopt corresponding restrictive measures on the civil litigation rights of citizens, enterprises and organizations of that country, and apply the same restrictions, so as to limit confrontation restrictions and achieve equality and mutual benefit between countries in the judicial field. Paragraph 2 of Article 5 of the Civil Procedure Law of the People's Republic of China stipulates that: "Where a foreign court restricts the civil litigation rights of citizens, legal persons and other organizations of the People's Republic of China, the people's courts of the People's Republic of China shall apply the principle of reciprocity to the civil litigation rights of citizens, enterprises and organizations of that country." "If a mainland citizen conducts a civil lawsuit in a certain country, the courts of that country adopt a discriminatory attitude towards the mainland citizen and do not allow the mainland citizen to appoint an agent ad litem, and the mainland people's court does not allow the citizen of that country to appoint an agent ad litem when hearing a civil litigation case against a citizen of that country.
Although the principle of reciprocity provides a theoretical basis for the enforcement of international law (especially the self-help behavior of States), the principle of reciprocity does not stipulate the scope and legality of enforcement measures, nor can it guarantee the effectiveness of coercive measures to solve the problem. Based on the needs of each country to safeguard the overall development situation, there are similarities and obvious differences in the interests of different countries, especially the focus of core national interests of different countries is different based on different national conditions. Based on the principle of reciprocity, the mainland can actively establish bilateral and multilateral cross-border personal information assistance agreements with other countries. According to the wording of the principle of reciprocity, if other countries or regions impose restrictions on the mainland, the mainland may take corresponding restrictive measures. The essence of setting up the principle of reciprocity is a necessary means to protect the rights and interests of its citizens and defend its sovereignty. "Reciprocity" in the principle of reciprocity only refers to the reciprocity of restrictive measures, and the criterion for constituting a restriction is that other countries or regions have discriminated against the mainland in the protection of personal information. The application of the principle of reciprocity presupposes an understanding of the situation in other countries and regions, and the application of the principle of reciprocity depends to a large extent on knowledge of the extraterritorial situation. There are three questions involved: first, who will find out; second, how to find out; Thirdly, what is the status of the situation after it has been ascertained. The objects identified include not only statutory law, case law and customary law as sources of law, but also relevant doctrines, legislative information and other relevant materials. For example, in order to circumvent the provisions of this Law, is it a restrictive measure to transfer personal information to a third country or region by a roundabout method? During the deliberation of the draft law, it was also suggested that the term "discriminatory measures" was too broad, and it was suggested that the above-mentioned provisions should be clarified or deleted. In fact, the principle of reciprocity is only a legal principle, which is broadly expressed in order to maintain the need for flexibility and proportionality in its application. If other countries or regions restrict the content of the mainland in the mainland, the mainland will restrict the content with the same content; If there is no provision in the law of the mainland, it should be limited by provisions of the same nature and similar content. Even so, the application of the principle of reciprocity is far more complex than envisaged. There are great differences in the legal systems or practices of different countries or regions, and although the application of the principle of reciprocity should pay attention to flexibility, it cannot ensure the correspondence of the content of reciprocity, especially when there is no relevant legislation in the mainland, there is a lack of uniform standards for the application of the principle of reciprocity. Even if it is known that the reciprocal restriction should be based on the provisions of "same nature" and "similar content", the difficult question encountered is what is "same in nature" and "similar in content", and how to define it? If the legislation of different regions of a foreign country is different, and some regions have restrictions on the rights of mainland citizens, while others do not, how should the principle of reciprocity be applied? Issues such as these are intangible obstacles to the application of the principle of reciprocity. Therefore, in the course of future application, it is necessary to further improve the supporting specifications of the principle of reciprocity to ensure that the application of the principle of reciprocity is highly operable, and the relevant departments may also issue specific implementation regulations, or guide the application by issuing guiding cases or typical cases. The improvement of supporting norms is not to negate the provisions of the principle of reciprocity, but to provide specific rules that can be operated on the basis of a full explanation of the principle of reciprocity, so that the provisions of the principle of reciprocity will not become empty words.