(By You Yunting) Abstract: In the proceedings of Qian Zhongshu’s letter manuscripts, in ruling whether the privacy right of decedents to a person should be protected by laws, the court decided that the relevant letters and manuscripts are irrelevant to the public interest and thus are private. However, the protective scope of the privacy right between the decedents of a person and a currently living person is different, and the protection of privacy right of decedents is weaker than the right of the public to be informed. The auctioning of these letters and manuscripts would, if it didn’t act to harm the reputations of Qian Zhongshu’s successors and relatives, not constitute an invasion of privacy.

Recently, the judgment of the auctioning of Qian Zhongshu’s letters and manuscripts was released. Beijing No.2 Intermediate People’s Court decided that the auction company had engaged in conduct constituting copyright infringement and invasion of privacy. It ruled that Li Guoqiang, for the invasion of privacy, and the auction company must compensate Yang Jiang RMB 200,000 and offer her an apology.

I once wrote two posts about the case, i.e., Is It Illegal to Auction off Qian Zhongshu and Yang Jiang’s Letter Manuscripts? and Could Yang Jiang Prevent the Auction off of Qian Zhongshu’s Letter with Friends?. Today, I would like to present my analysis on the right of privacy from the abstract of the judgment (note: the link is in Chinese) regarding this case. If there are any imperfections, please let us know, as this is merely a preliminary analysis.

Firstly, my conclusion of the issue is that, the judgment of the court, protecting the copyright and privacy of writers and their successors is fair in general. However, the judgment held that the involved letters and manuscripts were allowed a type of privacy that should be protected by China’s laws and regulations. Qian Zhongshu, Yang Jiang and Qian Yuan respectively have their rights to protect any invasion of their privacy. In my opinion, the privacy of Yang Jiang should be protected by laws, but it is worth discussing whether the letters and manuscripts of his decedents Qian Zhongshu and Qian Yuan should be afforded equal protection.

The right of privacy is considered a kind of human right. According to the traditional theory of civil law, a human right commences at the time of birth and ceases at the time of death. Thus, for a decedent person, his or her human rights, including the right of privacy, shall have ceased to exist. However, laws protect do the privacy of a deceased to some extent. The privacy of a deceased is designed not to protect the deceased, but protect the reputation of their successors, relatives and even some friends.

The standard of protection of privacy between the living and the deceased must be differentiated. In general, it is a social convention that some situations and matters in the lives of deceased will always be disclosed by insiders, particularly where such a deceased person is famous. The rationality in the background is that, when adjudicating the right of privacy, one must also consider another implied right in the law: the right of the public to be informed.

With this latter right being one of the important rights, the right to be informed belongs to the right of personality, which everybody enjoys. Even though there is no stipulation in our laws, the right to be informed actually exists in our everyday lives. For example, the very popular application for disclosure of government information is a kind of right to be informed. Another kind of right to be informed is to know the lifestyles of people we know in everyday life and celebrities. In more common phrasing, it is right to know gossip. The aspiration to learn gossip is based on the inner spirit of curiosity and ought to be enjoyed by all.

An argument about the legal boundary between the right of the public to be informed should be put forward. In my opinion, the scope of the right to know is protected outside the protection scope of personal privacy, trade-secret rights and state-secret rights. During one’s lifetime, a person’s right of privacy should be strengthened protected by virtue of personal feeling and reputation. The balance between personal privacy and the public’s right to know should favor the protection of personal privacy. The public should, if they try to learn private information about people they know and even celebrities, respect personal rights.

As a proverb in China says, the issue of the skin does not exist, but rather the issue exists in our diligent vanity of reputation and privacy that ensures we are most engrossed in our non-corporeal belongings. After their death, the balance might favor the right of public to know. In this case, the public should have the right to know the letters of such scholars as Qian Zhongshu after his death. The key point in this case is that Scholar Qian Zhongshu has died and therefore, that his personal privacy may be offered weakened protection. As such, should such auctioning of these letters and manuscripts be considered to have invaded the right of privacy?

The solution to this problem relies on establishing a clear legal boundary between the personal right of privacy and the public’s right to know. In my view, the legal boundary in this case is the right of protection of reputation for the relatives and successors of the decedent, i.e., if the disclosure of these letters and manuscripts harmed the reputation of the author’s relatives and successors, such disclosure would be an invasion of privacy. However, the abstract of the judgment only released the arguments and basis and does not involve the issues regarding the invasion of the successors’ reputation, making it impossible to give more detailed analysis on this point.

Additionally, the abstract of the judgment decided that, as they are private letters and manuscripts written to Li Guoqiang. These letters and manuscripts, including academic discussion, life affairs and insights, are private information in the private realm, irrelevant to the interests of the public, and ought to be protected by law. Obviously, the court’s legal logic is that these letters and manuscripts are irrelevant to the interest of the public and thus deserve privacy protection. As we have not found any complete judgment about this case, we have no idea whether the courts had discussed the scope of protection between the privacy of the living and the decedent. Opening the abstract of the judgment, we don’t exclude the possibility of a similar discussion.

In conclusion, in this case, due to the non-disclosure of these letters and manuscripts, Yang Jiang acting as a successor of these letters and manuscripts could prevent the auctioning on the ground of copyright infringement. Therefore, the result of such a judgment is correct. However, as this was a very popular case, the attitudes about how to protect the privacy of the deceased should be a focus that drives legal jurisprudence. We hope to read the judgment as soon as possible to better understand the reasoning points.

 Lawyer Contacts

You Yunting：86-21-52134918  youyunting@debund.com/yytbest@gmail.com

Disclaimer of Bridge IP Law Commentary

Short Link: