In May, the Intermediate People’s Court of Nanjing City, Jiangsu Province, published its civil judgment ruling that the search engine Baidu’s use of cookies, used to personalise advertisements aimed at consumers when they enter onto certain third-party websites, does not infringe an individual’s right to privacy.

The case involved Internet user Ms. Zhu Ye, who claimed her privacy rights were violated after seeing repeated advertisements on weight loss, abortion and breast implants after using Baidu’s search engine previously to look up related information.

The court decided that a record of a user’s Internet activity and Internet preferences concerns privacy, but would not constitute personal information as the information was in a separate form and cannot identify the user. The judge also decided that Ms. Zhu’s claims of emotional distress were subjective and unsupportable, and that Baidu had fulfilled its duty to Ms. Zhu as a consumer by publishing a well-developed privacy policy and providing the possibility to opt out of advertising if the user wanted.

China still has no specific rules on cookies, and this case, because of the lack of common law, will not be binding on later courts, which may leave companies uncertain about whether their cookie policies will hold up in court. However the case demonstrated that:

  • The use of cookies in the targeting advertising context can be compliant with China’s privacy laws, but the legality of other uses is still unclear
  • Privacy policies are essential for companies and cookies should be thoroughly explained to ensure consumers are clearly informed
  • A website policy should be prominent and easy to find. A link at the bottom of the page will suffice.
    This judgment should allow those using targeted advertising to have more confidence that using cookies in such a way will be compliant with Chinese law but, unfortunately, because of the fact that this judgment does not bind future cases, many questions remain unanswered.