From Dependency to Independence: On the Paradigm Transformation of Criminal Protection of Privacy Rights in China

Abstract

The extensive application of big data and artificial intelligence technologies has led to the ongoing erosion of privacy protection; however, the safeguards for the right to privacy under China’s Criminal Law have clearly lagged behind. Judicial practice has relied on the crime of infringing upon citizens’ personal information as the primary regulatory tool; however, privacy rights and personal information rights differ fundamentally in the legal interests they protect: the former protects personal dignity and the peace of one’s life, while the latter upholds the order of information flow and self-determination. As evidenced by Guiding Case No. 265 of the Supreme People’s Court and a number of representative cases of cyber violence, a considerable amount of conduct that directly undermines the dignity of privacy can only be prosecuted through the legal framework of personal information crimes, which creates a displacement in the evaluation of the protected legal interests. Meanwhile, the Civil Code has explicitly established the right to privacy as an independent and prioritized specific personality right, yet criminal legislation has consistently failed to establish dedicated provisions, leading to structural contradictions within the legal system. Through an analysis of legal interests and normative frameworks, this paper identifies three limitations in the current dependent protection model—regarding the evaluation of legal interests, the scope of protection, and constitutionality—and proposes the establishment of a “crime of infringement of citizens’ right to privacy” to construct a dual-track paradigm combining direct and indirect protection. This transformation is not merely the addition of a new criminal offense but also a profound adjustment to the definition of legal interests, evaluation mechanisms, and systemic coordination, with the aim of providing comprehensive and effective criminal law safeguards for the right to privacy in the digital age.