New Challenges and Countermeasures Faced by Enterprises in the Era of the Civil Code and the Personal Information Protection Law

Article 38 of the Labor Contract Law and Article 5 of the former Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (IV) stipulate that if an employer illegally restricts personal freedom by forcing an employee to work, the employee may immediately terminate the labor contract without prior notice to the employer, and the employee may require the employer to pay economic compensation.

The Civil Code defines the right to bodily integrity and freedom of movement, and Article 103 provides that natural persons have the right to bodily rights. The physical integrity and freedom of movement of natural persons are protected by law. No organization or individual may infringe upon the body rights of others. Article 1011 provides that where the freedom of movement of another person is deprived or restricted by means of illegal detention, or the body of another person is illegally searched, the victim has the right to request the perpetrator to bear civil liability in accordance with law.

The Civil Code restricts the protection of personal freedom not only to workers in the field of labor law, but also to the law if the manager is restricted by personal freedom, so the enterprise may stipulate that the arbitrary restriction of the personal freedom of others is one of the circumstances in which the employer unilaterally terminates the labor contract.   

2. On the issue of sexual harassment. 

3. Personal information includes the protection of portrait rights. 

Article 1018 of the Civil Code stipulates that natural persons enjoy the right to portraiture and have the right to make, use, disclose or permit others to use their own portraits in accordance with law. Portrait is an external image that can be recognized by a specific natural person reflected on a certain carrier through images, sculptures, paintings, etc. The Civil Code regulates the connotation of portraits, shifts to the criterion of "recognizability", and extends the protection of portrait rights.

Although according to Article 13 of the Personal Information Protection Law, employers may collect necessary personal information without the consent of individual employees. With the strengthening of the right to portrait and sound, if the employer involves the use of the employee's portrait or voice when producing promotional materials and audio-visual materials, it should sign an "Authorization and Use Agreement" with the employee in advance to avoid passive situations. 

In addition, some multinational enterprises, due to management needs, need to provide some employee information to foreign countries, and need to meet other requirements of the Personal Information Protection Law, that is:

• Article 38 Where personal information processors really need to provide personal information outside the Territory of the People's Republic of China due to business needs, they shall meet one of the following conditions: 
  (1) Follow the provisions of article 40 of this Law to pass a security assessment organized by the State Network Information Department; 
  (2) Follow the provisions of the state network information departments to conduct personal information protection certification by professional bodies; 
  (3) Conclude a contract with an overseas recipient in accordance with the standard contract formulated by the State Internet Information Department, stipulating the rights and obligations of both parties; 
  (4) Other requirements provided for by laws, administrative regulations, or the State Network Information Department.  
  
  Where international treaties or agreements concluded or acceded to by the People's Republic of China have provisions on the conditions for providing personal information outside the territory of the People's Republic of China, they may be implemented in accordance with those provisions. 
  Personal information processors shall employ necessary measures to ensure that overseas recipients' activities in handling personal information meet the standards of personal information protection provided for in this Law.
  
  
• Article 39 Where personal information processors provide personal information outside the territory of the People's Republic of China, they shall inform individuals of matters such as the name or name, contact information, purpose of processing, methods of processing, types of personal information, and the methods and procedures for individuals to exercise their rights under this Law to overseas recipients, and obtain the individual's separate consent. 

4. The right to reputation and the right to honor. 

The right to reputation and honor stipulated in the Civil Code is extended to all civil subjects, which are no longer limited to individual workers, and employers also have the right to reputation and honor. 

In the field of labor relations, both labor and management may be involved in disputes over the infringement of the right to reputation. In the future, when formulating or improving relevant rules and regulations or making an enterprise labor contract, an employer may include the employee's infringement of the right to reputation of others or the unit in the employee's prohibited conduct norms, and may also stipulate that it is one of the circumstances in which the employer unilaterally terminates the labor contract. 

5. Privacy issues. 

Article 1032 of the Civil Code stipulates that privacy is the private space, private activities and private information of natural persons whose private life is peaceful and unwilling to be known to others. Among them, the definition of privacy adds the judgment standard of "the private life of natural persons is peaceful and unwilling to be known to others", which expands the scope of the definition of privacy, increases the subjectivity and flexibility of judgment, and will further enhance the awareness of employees' rights, especially the awareness of privacy protection, which will bring many challenges to the labor and personnel management of enterprises. For example, in the daily sick leave and attendance management, enterprises require employees to provide medical records or collect employee fingerprint information. Although the enterprise requires employees to provide "cases" and collect "fingerprints" does not infringe on the "right to privacy" of employees, the relationship between the employer and the employee is an employment relationship, the core of the labor relationship exists in the relationship between management and management, the employee applies for sick leave from the employer, involving the calculation of the medical period and the calculation of sick leave wages, and the employer has the right to confirm the employee's condition. 

Therefore, the employer's acquisition of medical records and fingerprint collection based on management items does not involve infringement of the employee's right to privacy, but the employer should keep it properly, and if the employer obtains the employee's medical records and disseminates the medical records, it constitutes an infringement of the employee's right to privacy. It is recommended that employers formulate relevant procedures for the management of employees' personal information, including privacy information, and personal information processors need to carry out necessary training.

 

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