On November 1, 2013, Compliance in China (www.ComplianceinChina.com) organized a seminar on Bribery Risk Management in China for various multinational and domestic companies. The keynote speakers include Henry Chen (cn.linkedin.com/in/henrylitongchen) as well as some high-leveled governmental officials from Administration for Industry and Commerce (“AIC”), the Public Security Bureau and the Prosecuting Office. The keynote speeches covered many interesting topics such as what compliance officers can learn from GSK case, what are the perspectives of an AIC official toward bribery under Chinese administrative law, what usually kicks off an administrative or criminal investigation, what are the elements of a unit crime. During the seminar, a recent criminal case on Dun & Bradstreet (“D&B”) was mentioned about how the prosecutor met the intentional element to prosecute the criminal case against D&B.
On September 28, 2012, Dun & Bradstreet’s local operating subsidiary Shanghai Roadway D&B Marketing Services Co., Ltd. (“Roadway”) was charged by the Shanghai public prosecutor with “illegally obtaining private information from Chinese citizens.” As reported by the Chinese press, the private information included the personal data of 150 million Chinese citizens, including their income, job titles, and addresses.
On January 9, 2013, the Wall Street Journal reported that the Shanghai Zhabei District Court found Roadway guilty of illegally purchasing the personal information of private citizens and fined the company RMB $1 million (US $160,648). Because this crime is a unit crime (or the crime committed by a non-individual entity), China law imposes responsibility for the crime committed by such a unit also on a couple of categories of individuals – “the responsible persons who are directly in charge” (直接负责的主管人员) and “the other persons who are directly responsible” (其他直接责任人员). As such, four employees involved in the illegal purchase were also sentenced to up to two years in jail and each fined between RMB $5,000 to RMB $10,000 (US $800 to $1600). The four employees included Roadway’s President Mr. Cui, the Data and Operation Director Mr. Li, a data manager Mr. Wang and a data collector Mr. Sun. Because this crime of “illegally obtaining private information from Chinese citizens” is an intentional crime, the prosecutor had to prove the Roadway and all of the four persons committed the crime intentionally.
In September of 2011, Mr. Wang and Mr. Sun got to know from a similar case taking place in Beijing that it might be illegitimate to purchase the private information from Chinese citizens. Mr. Wang and Mr. Sun sent an email to Mr. Cui and Mr. Li as well as Mr. Yuan – the Data and Operation Director of the Greater China of D&B (Hong Kong). Roadway also consulted with its lawyer about whether or not it is legal to do the purchase. However, the lawyer did not say yes or no. Instead, the lawyer proposed Roadway to change the title of the concerned contract from “The Contract of Purchasing Information and Data” (信息数据采购合同) to “The Contract on the Advice and Consultation for Commercial Data” (商业资讯咨询顾问合同) so as to mitigate risk exposure as the lawyer hoped. Probably on the basis of the “optimistic” opinion of the lawyer, a board decision was adopted by Roadway (a subsidiary company of D&B in China) to continuously purchase the privacy data, and the board decision becomes a perfect incriminating evidence to prove the Roadway and the other four accused individuals intentionally committed the crime of breaching privacy.
- Henry Chen, licensed to practice law in China and New York, is a senior partner of Dentons Shanghai Office. Before joining Dentons, Henry was AP Compliance Director of Ford. Henry is the legal counsel of one of the biggest Internet search engine companies for its autonomous driving projects covering data integrity and security, protection of commercial secrets under the context of cyber security, compliance with Cyber Security Law, autonomous survey and mapping, privacy, risk management on autonomous driving accidents and car call-back, risk management on network penetration and safety. In addition to TMT areas, Henry also handles traditional compliance issues on FCPA, anti-fraud investigation, compliance management system, corporate matters and dispute resolutions. Henry's email is Henry.Chen@dentons.cn
