Highlights: More and more malicious APP on Android phones have been spotted, to prevent the legal rights and interests of smart phone users in China, Mr. You Yunting, the founder of Bridge IP Commentary gives his suggestions and analysis.
With the popularity of smart phones, it comes to the security companies’ attention that more and more APP malwares are hitting Android phones as well as the jailbroken iPhones. And unlike surreptitious charge, the unauthorized uploading of personal data is difficult to be perceived by the user for less time and flow hereby taken.
For the legal issues concerning the privacy invasion by booby-trapped APP on Android phones, Mr. You Yunting, the founder of Bridge IP Commentary, is interviewed by Techweb.com.cn recently, and the followings are the details of the interview:
1. What law is broken for privacy breach by APP?
The privacy breach by APP is kind violation against the China Tort Law. By the Article 2 of the law, “Privacy” is the civil rights of citizens, and such unauthorized collection by APP operators is surely the infringement of users’ privacy.
In addition, according to Article 7 of the Regulation on Protection of Computer Information System Security, any organization or individual shall not use computer information systems against national interests, collective interests and the legitimate interests of citizens, either endanger the security of computer information systems. From this aspect, the operators of APP malware surely have violated the Regulation for the privacy is one of the legitimate interests of citizens
2. What’s the nature of such misconducts with various purposes, for some only for data accumulation, some taking no further action after thieving, and some having sold it to advertisers or SMS scam?
We think they all constitute an infringement of privacy. However, the difference is that little losses may be resulted by the “data accumulation” or “no further action” and the compensation shall not be high even it being payable. While as to the sales to the scam, the malicious operator is surely to take the liability for the damages likely to be suffered by users.
On the other hand, under the existing provisions of Chinese criminal law, it is almost impossible for malware operators to bear criminal liability.
3. Who can protect user privacy? And what’s the suggested measure for users when confronting malicious APP?
As regulated in the 7th Amendement to China Criminal Law, any staff member of state body, or the organization of finance, telecommunication, transportation, education, or health care, etc., illegally sells or provides the citizens’ personal information obtained during the course of performing duties or providing services, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention with a fine imposed concurrently or shall be only subject to a fine if the circumstances are serious. Citizens may report to the police department report once their privacy is infringed by these subjects.
For the invasion of privacy by malicious APP operators, the customer may report to Ministry of Industry and Information Technology, or claim the compensation or the stop of infringement in court according to Tort Law.
4. What do you call for the industry?
Except the online game, the whole internet industry in China is free to users. Thus necessarily leads to the business mode of the propaganda aiming at the client data collected. We think the online business shall follow the expressed privacy policy when collecting the personal data and such data shall not be used for illegal purposes. Besides, there are lots of Android Markets in China beyond the control of Google. For the chaotic market, we suggest to set up non-government certification bodies in charge of technical inspection and certification of APPs. Surely, as long as the certification body maintains neutral, it will definitely get the trust of users and its certification will be the important reference for APP choice.
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Copyright reserved by Mr. You Yunting
Editor-in-Chief of Bridge IP Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. All news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only. You may contact us shall you have any opinions or suggestions.
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