Symposium on the "Guiding Opinions on the Protection of Online Commercial Data (Exposure Draft)"

In the afternoon on Oct. 22, 2009, the Electronic Commerce and Information Network Research Committee of Shanghai Bar Association held a symposium on the protection of online commercial data in the conference hall with Pro. Yang Jianzheng who participated in drafting the "Guiding Opinions on the Protection of Online Commercial Data (Exposure Draft)" (hereinafter referred to as the "Guiding Opinions") and Chen Qian who is the Division Chief of the Policy and Regulation Department of the Committee of Industry and Information Technology being invited on 35F of Shanghai Bar Association.

Pro. Yang introduced the draft background, importance and draft threads, etc. of the Guiding Opinions to the conferees, and highlighted the problems the protection of online commercial data faces, and made some suggestions on regulating the collection, use and transmission, etc. of online commercial data. Pro. Yang pointed out that the problems the protection of online commercial data faces mainly included unfair or illegal collection, arrangement and use of online commercial data by taking advantages of network and acts infringing the benefits of the right owners of online commercial data (especially the customer information, trade secrets and copyright infringements) and the said right owners' negligence of protecting their own rights, etc. Pro. Yang then indicated that the safety protection of data transmission, the protection of trade secrets, copyright and patent and other basic rights which online commercial data constitutes and the state interests should be strengthened to protect online commercial data.

Division Chief Chen, based on making comments on Pro. Yang's lecture, further introduced to the conferees relevant undertaken by Shanghai in the protection of personal information. Division Chief Chen said that Shanghai had gradually optimized and strengthened the protection of personal information of citizens by formulating "The Administrative Measures of Shanghai Municipality on Personal Credit Information Collecting (for Trial Implementation)" and "Provisions of Shanghai Municipality on the Disclosure of Government Information", etc.

Prior to the Guiding Opinions, Ministry of Commerce has already organized the drafting of "Guiding Measures on the Protection of Online Commercial Data (Exposure Draft)". In our view, the reasons why the Guiding Measures were revised to the "Guiding Opinions on the Protection of Online Commercial Data (Exposure Draft)" and the contents were partly revised are mainly that online transactions are within the adjustment scope of civil and commercial affairs which should be governed by making laws or authorizing the State Council to make administrative regulations according to Article 8 of the Law on Legislation and Ministry of Commerce as a component department of the State Council no appropriate standing to make department rules in the absence of electronic commerce basic law. In case there's any electronic commerce dispute, General Principles of the Civil Law, Contract Law and Law on Electronic Signature and other laws, regulations and judicial interpretations may be applied. However, with the frequency of electronic commercial activities, basic law or administrative regulations governing electronic commercial activities should be formulated early to regulate and powerfully support this new industry.