April 19, 2019
In a notice issued March 12 and published in mid-April, the State Administration for Market Regulation (SAMR) announced a six-month enforcement "special action" targeting personal information practices in industries ranging from real estate to mobile apps. The effort is to conclude at the end of September.
SAMR's notice directs local authorities at different levels of government to formulate plans, conduct investigations, and report enforcement actions pursuant to the Consumer Rights Protection Law, the E-Commerce Law, and the Cybersecurity Law, among other authorities.
This action joins other enforcement efforts focused on other aspects of the personal information protection picture, including consent for collecting and using personal information and broader cybersecurity practices. For more on the wide array of data governance laws, regulations, and standards in the Chinese system, see: The Evolution of China's Data Governance Regime: A Timeline. –Ed.
Title: Notice of the Office of the State Administration for Market Regulation on the Launch of “Consumption Protection” and Special Enforcement Actions to Combat Illegal Activities Violating Consumer Personal Information
Index number: 2019-1554879997394
Subject classification: Document release; law enforcement audit
Document number: None
Affiliation: Law Enforcement and Inspection Bureau
Date of Issue: March 12, 2019
Notice of the Office of the State Administration for Market Regulation on the Launch of “Protected Consumption” and Special Enforcement Actions to Combat Illegal Activities Violating Consumer Personal Information
All provinces, autonomous regions, municipalities, municipalities with independent planning status, and sub-provincial municipal market regulators; Xinjiang Production-Construction Corps Market Regulation Bureau:
With the transformation and upgrading of China’s economic structure and the rapid growth of e-commerce, consumers’ personal information has gradually become an important resource. At the same time, various illegal activities violating consumer personal information have increased, not only threatening consumers personal safety and property, but also affecting the healthy development of the economy and society. In order to better protect the legitimate rights and interests of consumers and create a safe and secure consumer environment, the State Administration for Market Regulation (SAMR) decided to focus on enacting “protected consumption” and to take action to crack down on consumer personal information violations (hereinafter referred to as “Special Action”) from April 1 to September 30, 2019. The relevant work notice is as follows:
I. Work Focus
- Focus area: This action is mainly aimed at: real estate rental and sales, small loan financing, education and training, insurance brokerage, beauty and fitness, home decoration and remodeling, travel and accommodation, express parcel delivery, telemarketing, website or app operations, and other sectors and industries that are prone to behave illegally in ways that infringe upon consumers’ personal information.
- Conduct focus: First, the illegal collection and use of consumer personal information without consent. Second, the illegal disclosure, sale, or provision of collected consumer information. Third, the illegal sending of unsolicited commercial information without the consent or request of the consumer, or after the consumer’s explicit refusal.
- Basis for investigation: Investigations will be carried out mainly in accordance with the Consumer Rights Protection Law (Articles 29 and 56), the E-Commerce Law (Articles 5, 23, and 79), the Cybersecurity Law (Articles 41, 42, 43, and 64), the Measures for Punishment of Infringement Upon Consumer Rights and Interests (Articles 11 and 14), and related laws and regulations.
II. Principal Measures
- Dig deep for case-related evidence: First, establish unimpeded channels for complaints and expand information sources by providing hotlines, websites, and other methods for reporting and making complaints. Second, pay attention to public opinion trends and collect case evidence from various places, such as the internet and news reports. Third, make full use of big data and, through the collection and analysis of data from consumer complaint-reporting platforms, hotlines, advertising monitoring, and case management systems, lock in key industries and increase the targeting capacity of the Special Action.
- Strengthen law enforcement coordinated action: First, strengthen vertically coordinated action. Municipal and county market regulators should take the lead in enforcing laws and handling cases, use on-site inspections, electronic evidence collection, and other methods to collect comprehensive evidence and advance the investigation of cases. For major and complex cases within their respective jurisdictions, the provincial, district, and municipal bureaus shall strengthen organizational coordination, supervision, and guidance, and carry out coordinated action at all levels. Second, strengthen cross-regional coordinated action. For inter-provincial -district, or -city cases, the respective bureaus should establish overall coordination, exchange information in a timely manner, and ensure mutual support and cooperation. Third, strengthen inter-departmental coordinated action. The protection of consumer personal information involves functions across multiple departments. When handling cases, it is necessary to actively seek support from relevant departments, strengthen links between administrative and judicial procedures, promptly report when other departments are involved, and organize joint actions when necessary.
- Launch extensive propaganda: Extensively publicize in multiple manners the results of the Special Action, typical cases, as well as laws, regulations, and knowledge related to the protection of consumer personal information. Increase business operators’ law-abiding consciousness, and instill respect for consumer personal information and the right to the protection of this information as accorded by law. Educate and guide consumers in general to actively protect their personal information and exercise caution when consenting to the collection and use of that information by business operators.
- Strike and standardize. Strengthen the coordination and cooperation of market regulation departments’ law enforcement and supervision agencies, and, drawing on operational realities, submit information on the handling and investigation of related cases to supervision agencies. For representative industry-wide encroachments on consumer personal information encountered while investigating and handling cases, potentially unite administrative agencies to arrange discussions and practically standardize industry systems.
III. Work Requirements
- Implement work responsibilities. Market regulation departments in all parts of the country should draw up a practical plan based on local realities and effectively implement Special Action assignments. They should establish and strengthen a system of responsibility, solidify an effective work mechanism, carry out local management responsibilities, vigorously contain the spread of illegal behavior that infringes on consumers’ personal information, and practically protect consumers’ legal rights and interests.
- Strictly enforce procedures. Conscientiously comply with the “Administrative Punishment Law of the People’s Republic of China,” the “Administrative Coercion Law of the People’s Republic of China,” the “Provisional Regulations on the Procedures for Administrative Punishment in Market Supervision and Administration,” and other procedural laws, statutes, and regulations. Earnestly implement administrative law enforcement public notices, complete records of law enforcement, major law enforcement decision making process review, and other systems. Pay attention to the legality of procedures, and be just and open.
- Report and submit information without delay. Market regulation departments should strengthen Special Action reporting and information submission. They should designate a Special Action contact person by April 15 and report them to the SAMR Law Enforcement Inspection Bureau. Before May 31 and July 31, they should separately submit a “Statistical Table of the Situation on Law Enforcement Action” (see attachment). Major key cases can be submitted at any time. Before September 30, they should submit a “Statistical Table of the Situation on Law Enforcement Action,” a summary of Special Action items, and model case materials (no fewer than three). The SAMR will circulate a notice on local market regulation departments’ work developments and case investigations.