How Could Online Game Companies Collect Users’ Information Legally?

With the Tort Liability Law coming into effect on 1st January of 2010, China internet companies are facing increasing pressures on the privacy violation. We would like to introduce the internet companies, especially the online game companies, the countermeasures to the risk of user information collection.

I. What legal risk from the user information collection?
Could there be any risk of collecting the hardware information, signing in IP information and software information of the users? That’s the question from a client of us. By our experience, in China, to collect the information that the owner would not like to open could possibly constitute the privacy violation. And in the internet industry, the law also prohibits the unauthorized visiting to the unlicensed computer system, the modification over other’s information or sending the information in others name arbitrarily which may constitute the privacy violation.

In our opinion, the above mentioned information collection contains the risk of personal privacy collection or even the privacy violation, because combining with the information filled out by the user, such information collectable of the software and hardware may be analyzed to gain the using habit of the users which is unwilling to be released by them. Therefore, the risk of privacy violation comes up. For the liability taking, we analyze as follows:

(1) The criminal liability
The criminal risk of two main aspects are involved, namely the “user information collection” and “the user information leaking”. For the “user information collection”, it’s not the legal accusation in the criminal law, while for the “user information leaking”, it’s legally provide that “Where any staff member of a state organ or an entity in such a field as finance, telecommunications, transportation, education or medical treatment, in violation of the state provisions, sells or illegally provides personal information on citizens, which is obtained during the organ’s or entity’s performance of duties or provision of services, to others shall, if the circumstances are serious, be sentenced to fixed-term imprisonment not more than three years or criminal detention, and/or be fined.” But the article mainly aims at the punishment over the conduct of “sells or illegally provides personal information”, which could rarely be conducted by the game company for its collection of the user information is mainly for the management in the game operation and not involving in the above situation, therefore, it shall be no worry to the burden of the criminal liability.

(2) The administrative liability
By the Interim Measures on the Management of Online Games (the “Measures”), the game company shall protect the legal interests of the players with the privacy of the players naturally included. Meanwhile, the Ministry of Culture (MOC) also regulates the compulsory bounding articles on the above conducts in the user agreement. Once the game operator fails to handle the issue concerning the user privacy by the demands of MOC, it may face the penalty for the violation against the legal interests of the player.

(3) The civil liability
Once the aforesaid conduct is judged as the violation against privacy, by the General Principle of Civil Law and Tort Liability Law, etc, the liability could include the tort ceasing, apology and compensation. And the compensation shall cover the direct and indirect losses of the user. Meanwhile, the mishandling of the issue which reported by the media then afterwards may lead to the distrust of the users, and that may result in a bigger loss than the judged compensation in the court decision.

II. The way to evade the legal risk of privacy violation
As discussed above, there do exist the legal risk to collect the user’s information which however could be evaded once it’s handled properly. By the existing China laws and regulations, it will violate no law once the information collection is noticed to the user in advance and afterwards be used properly and legally with no leaking at the same time. Therefore, generally we will advice a amendment to the user agreement, and by the laws and regulations, the user agreement involving the collection and management of the user information shall contain the following aspects:

(1) Prior confirmation by the user before the collection
As provided in the Measures, the game company shall notice the collection and using policy of the user information to the players in advance in the user agreement. And in the practices, as investigated by us, the regulation is followed by the operators of the popular online games, like the Legend of Mir, the World of Warcraft and the Cross Fire. Therefore, it’s suggested to make such articles in the user agreement, the acceptation of which may reduce the legal risk of privacy violation greatly when the company collecting the user’s information.

(2) No illegal using of the collected information
Once the collected information is used for illegal purpose, the singed user agreement will also be deemed as invalid. We also once came up with a question that could it be still illegal when the information collection is to identify the cheating player? We think the purpose of cheating distinguish is observing the law, but it’s more suggested to express it as “to collect the information for the improvement of the game service and only used in the legal purpose by the agreement.”

(3) A strict confidential system
By China laws and regulations, there’s also another suggestion from us of a stricter confidential system for the avoidance of the damages suffered by the player from the information leaking in using the collected information. Furthermore, it’s more helpful to cultivate the trust from the players when promising the necessary and reasonable measures in business to keep the information confidential.

Author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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