Sexual harassment and privacy rules in force in 2021
Effective as of January 1, 2021, Article 1010 of the Civil Code obliges companies to adopt measures for preventing sexual harassment in the workplace. This means employers have a duty to take action against sexual harassment. This includes:
- Having a channel to complain about sexual harassment
- Having a procedure for investigating complaints
- Having rules to discipline wrongdoers
What does the law say?
Article 1010 of the Code stipulates that:
“Where a person sexually harasses another person against his or her will through verbal behavior, words, images, physical behavior, or other forms, the victim has the right to request the perpetrator to assume civil liability according to the law.
Government agencies, enterprises, schools and other entities shall take reasonable measures of prevention, acceptance of complaints, investigation and handling, so as to prevent and cease sexual harassment conducted by violators by making use of their powers, supervisor/subordinate relationships, etc.”
For the first time, sexual harassment against men may also fall into the legally prohibited category. If the victim has expressed explicit rejections to a certain behavior, that behavior is likely to constitute sexual harassment.
How big a problem is sexual harassment in China?
According to a study conducted by Beijing Yuanzhong Gender Development Center, nearly 40 percent of women were reported to have experienced sexual harassment in the workplace in China.
Businesses have been lagging behind. According to a 2018 survey of more than 100 respondents from developed coastal cities, 81% of their companies did not have anti-sexual harassment policies on the books, while another 12% did, but did not enforce them. Thus the government has decided there needs to be a new onus on businesses to crack down on sexual harassment.
There is some evidence Chinese authorities are starting to take sexual harassment more seriously.
On May 31, 2019, Li Moumou, a teacher from a college in Tianjin, verbally harassed a female student of the school through WeChat. According to existing laws and regulations, Li Moumou was expelled from the party, dismissed and relieved from labor. The teacher’s qualifications and contract were revoked in accordance with the law.
How has sexual harassment law developed in China?
There has been a gradual increase in laws and regulations tackling sexual harassment in China over the past 15 years. In 2005, the Law on the Protection of Women’s Rights and Interests became the first law to generally prohibit sexual harassment and said female employees have a right to file complaints with their employers (Article 1010 is gender neutral, but its predecessors only applied to women).
A 2012 State Council regulation went further, stipulating employers “should prevent and curb sexual harassment.” There have also been a number of provincial regulations that are yet more specific, stating that employers should adopt anti-sexual harassment measures. In January 2019, the Supreme People’s Court added: “disputes regarding compensation for harm caused by sexual harassment” to its list of causes of action to facilitate claim filing.
Recently, cities and provinces have been tackling sexual harassment in public. A 34-year-old man groped a woman and a girl on the Line 8 Subway train in Shanghai. He was arrested and sentenced to six months in jail by the Jing’an District People’s Court. He was the first person to be criminally punished for groping passengers on public transportation in the city, but he will not be the last, as Shanghai has stepped up its initiative to combat sexual harassment on the city’s public transit system.
Public sexual harassment is a widespread problem in China. In a survey conducted by China Youth Daily, more than half of the female respondents said they had experienced some form of sexual harassment on a bus or on the subway.
What if employers do nothing?
Employers may face civil liability for failing to prevent sexual harassment, although it remains unclear whether and how employees can bring private actions against employers. Given that employers must now take preventative steps, neglecting this statutory duty may also constitute a violation of China Labor Law Article 92, the penalties for which can include an order to rectify, financial penalties, or even suspension of operations.
A 2018 survey of over 100 respondents from coastal cities found 81% of their companies did not have anti-sexual harassment policies. Another 12% had written policies, but did not implement them. Liao Jingyi, a co-director of EnGender, a social enterprise that is encouraging businesses to adopt anti-sexual harassment measures, said: “I’ve failed many times when trying to invite companies to [adopt policies]… They often ask me, ‘What kind of profit can I get from this?’” Now, the motivation comes from the law as stipulated in Article 1010. It is not enough to do nothing.
What else is in the law?
In addition to the significant developments in China’s sexual harassment law, the new civil code also includes an entire chapter addressing the right to privacy and protection of personal information. This is the first time in China’s history that individual privacy rights have been addressed in this manner. Under the civil code, individual privacy is defined as “private space, private activities and private information which a natural person is unwilling to be made known to another person, and that no organization or individual may infringe the privacy rights of other persons through spying, intrusion, or leakage.”
What does the privacy law do?
The Civil Code now states that the personal information of natural persons is protected by law. Personal information is a variety of information recorded electronically or in other ways that can identify a specific natural person alone or in combination with other information, including the natural person’s name, date of birth, ID number, biometric information, address, telephone number, email address, health Information and geo-location information.
Under the new laws, people have a right to privacy, which is defined as “the tranquility of a natural person’s private life and the private space, private activities, and private information that people might not want others to know.”
This means that privacy violations are not limited to the various previously known acts of illegally acquiring and disclosing personal “private space, private activities and private information”. Any other social phenomena that may nuisance or destroy the tranquility of private life or constitute a serious disturbance to the people, such as various frequent harassing calls, text messages, mandatory pop-up advertisements, noise, smoke and other environmental pollution may also be regarded as an infringement of privacy.
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