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2021

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07

Lawyer from Legal Shengbang said | Wang Bingyang: How can the law punish private cameras for stealing privacy?

Recently, a micro camera hidden in a guest room of a well-known chain hotel in Xiamen has attracted the attention of netizens. The victim immediately reported the incident after discovering the camera. On July 7th, the Xiamen police reported that they had been investigated and sent the camera to the technical department for inspection and appraisal. Three days later, the suspect was arrested and brought to justice. The police detained him on suspicion of illegally using specialized equipment for eavesdropping and photo theft.


Recently, a micro camera hidden in a guest room of a well-known chain hotel in Xiamen has attracted the attention of netizens. The victim immediately reported the incident after discovering the camera. On July 7th, the Xiamen police reported that they had been investigated and sent the camera to the technical department for inspection and appraisal. Three days later, the suspect was arrested and brought to justice. The police detained him on suspicion of illegally using specialized equipment for eavesdropping and photo theft.

 

In fact, incidents of hidden cameras hidden in private places such as hotels, homestay rooms, public toilets, and shopping mall fitting rooms have been repeatedly reported in the news. Even the most inconspicuous daily necessities, such as sockets, mineral water bottles, lighters, and clothing buttons, may contain miniature cameras that constantly record people's every move. According to the facts confirmed by the Xiamen police, the perpetrator in this incident only installed a camera to satisfy their desire to peep. In reality, in addition to satisfying their personal desires, "sneak shots" were even uploaded by criminals to the internet for sale and profit. According to relevant media reports, up to tens of thousands of privately captured videos have been publicly sold on various illegal websites, with prices ranging from 20 yuan to a few hundred yuan per video. According to the degree of privacy exposure, buyers can also increase prices and resell them, forming a complete black industry chain.

 

It is undeniable that the rapidly developing internet information technology has brought great convenience to people's lives. But at the same time, citizens' personal privacy is also greatly challenged as a result. In the past, China's laws made many clear provisions for the protection of citizens' personal information, but there were only framework provisions for the protection of citizens' privacy rights. Considering the urgent need for personal privacy protection in the digital age, the Civil Code, which came into effect on January 1, 2021, clarifies the definition of privacy for the first time and further clarifies the situations of privacy infringement through enumeration, including "entering, filming, peeking into private spaces such as others' homes and hotel rooms" and "filming, peeking, eavesdropping, and disclosing others' private activities". From this, it can be seen that the law is increasingly emphasizing and cracking down on such violations of citizens' privacy.

 

So, what legal responsibilities should individuals and hotel parties bear for installing secret cameras in hotel rooms to steal privacy without authorization?

 

1、 Civil liability

 

1. For the perpetrators of privately installed cameras, they should bear infringement liability towards the victims.

According to Articles 1032, 1033, and other provisions of the Civil Code, no organization or individual shall infringe upon the privacy rights of others through espionage, intrusion, leakage, or disclosure, and shall not engage in activities that infringe upon personal privacy such as "filming, peeping, eavesdropping, or disclosing others' private activities" or "filming, peeping, eavesdropping, or disclosing others' private activities". For the infringer who has committed the above-mentioned acts, they shall bear civil liabilities such as cessation of infringement, compensation for losses, elimination of impact, restoration of reputation, and apology to the victim.

 

In addition, according to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Mental Damage Compensation in Civil Torts, if a natural person's personal rights and interests are infringed upon and a lawsuit is brought to the people's court requesting compensation for mental damage, the people's court shall accept it in accordance with the law. Due to the characteristics of privacy rights, infringement generally manifests as infringing on the personal dignity of the victim, which may cause mental damage to the victim. In this case, the infringer also needs to bear the liability for mental damage compensation to the victim in accordance with the law.

 

2. For hotel owners who are unaware of the private installation of cameras by third parties, they should assume supplementary responsibilities without fulfilling their safety obligations.

As an operator, hotels should bear the obligation of ensuring safety for residents within their operating premises. According to Article 1198 of the Civil Code, operators, managers, or organizers of public places such as hotels, shopping malls, banks, stations, airports, sports venues, and entertainment venues who fail to fulfill their safety obligations and cause damage to others shall bear tort liability. If the act of a third party causes damage to others, the third party shall bear the liability for infringement; If the operator, manager, or organizer fails to fulfill their safety protection obligations, they shall bear corresponding supplementary responsibilities. After assuming supplementary responsibilities, the operator, manager, or organizer may seek compensation from a third party.

 

Hotel rooms belong to the private sector. As a legal entity engaged in accommodation and other business activities, hotels have a duty of care to protect the personal information, privacy, and image data taken at their premises from loss and dissemination. If they fail to fulfill their corresponding management responsibilities and fail to discover that the room is equipped with a hidden camera, due to their certain fault, they should bear supplementary responsibility for the victim.

 

2、 Criminal responsibility

 

1. Crime of infringing on citizens' personal information

If the perpetrator secretly installs a camera in a hotel room to steal personal information of citizens, sells the obtained private videos to others on the internet, and leaks personal information of residents, it may constitute the crime of infringing on personal information of citizens. According to Article 253-1 of the Criminal Law, if a citizen's personal information is infringed upon and the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.

 

2. Crime of producing, selling, and disseminating obscene materials

If the perpetrator illegally obtains another person's private video and copies, sells, or disseminates it for profit, it may constitute the crime of producing, copying, publishing, selling, or disseminating obscene materials for profit. According to Article 363 of the Criminal Law, anyone who, for the purpose of profit, produces, replicates, publishes, sells, or disseminates pornographic materials shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance, and shall also be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have his property confiscated.

 

Even if the perpetrator does not sell pornographic videos for profit and only spreads them, it may still constitute the crime of spreading pornographic materials. According to Article 364 of the Criminal Law, if the perpetrator spreads pornographic books, films, audiovisual images, or other pornographic materials, and the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention, or public surveillance.

 

3. Crime of extortion and extortion

If the perpetrator illegally shoots another person's private video and threatens the victim to demand property, it may constitute the crime of extortion. According to Article 274 of the Criminal Law, those who extort public or private property in a relatively large amount or repeatedly extort shall be sentenced to fixed-term imprisonment of not more than three years, detention or public surveillance, and shall also, or shall only, be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is particularly huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than ten years and shall also be fined.

 

4. Crime of illegally using specialized equipment for eavesdropping and photo stealing

4. Crime of illegally using specialized equipment for eavesdropping and photo stealing

 

For individuals and units that illegally produce and sell eavesdropping or photo stealing equipment, it will also constitute the crime of illegally producing and selling specialized espionage equipment, eavesdropping or photo stealing specialized equipment. According to Article 283 of the Criminal Law, anyone who illegally produces or sells specialized espionage equipment or specialized equipment for eavesdropping or stealing photos shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible supervisors and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.

 

3、 Administrative responsibility

 

If the perpetrator privately installs a camera to peep or secretly capture the privacy of others, even if it has not reached the level of criminal activity, they shall bear corresponding administrative responsibilities in accordance with the law. According to Article 42 of the Law on Punishments for Public Security Management, if the perpetrator peeps, secretly shoots, eavesdrops, or spreads the privacy of others, he shall be detained for not more than five days or fined not more than 500 yuan; If the circumstances are serious, the offender shall be detained for not less than five days but not more than ten days and may also be fined not more than 500 yuan.

 

Based on the author's analysis of the legal responsibilities of the perpetrator and the hotel during the incident, it is evident that the legal consequences borne by the perpetrator are more serious. But as is well known, in various commercial venues such as hotels, bathrooms, beauty salons, and fitting rooms, maintaining customer safety has always been their top priority. The 'security' here not only includes the personal safety of customers, but more importantly, it is important to protect their 'privacy and security'. Article 18 of the Consumer Rights Protection Law also clearly stipulates that operators shall ensure that the goods or services they provide meet the requirements for safeguarding personal and property safety. Operators of hotels, shopping malls, restaurants, banks, airports, stations, ports, cinemas, and other business premises shall fulfill their safety and security obligations to consumers.

 

The author believes that for hotel rooms, which involve the exposure of customers' physical privacy, operators should, given their management advantages, carry out comprehensive and high-density protection including manpower and technology to ensure the privacy and safety of customers. Therefore, when defining whether the hotel has fulfilled its security obligations, the recognition standards should be appropriately raised to enable it to take on the main responsibility of customer "privacy protection". Only in this way can the supervision of the public security organs be targeted and prevent the occurrence of such privacy leakage behavior from the source.