Challenges and Responses to the Disclosure of Privacy- Related Administrative Penalty Decisions

Abstract： The disclosure of administrative penalty decisions is a critical provi‐sion added to the revision of the Law of the People’s Republic of China on Administra‐tive Penalties in 2021， which is the integration of the reform fruits of the “administra‐tive law enforcement publicity system”， reflecting the requirement of disclosure of thewhole process of administrative penalty. As an evaluation of the administrative depart‐ments’ negative behavior towards the administrative counterpart， the administrativepenalty decision includes much private information. If the administrative departmentsdo not take cautious steps on the principle of privacy disclosure and the content of thedisclosure， it is easy to trigger the effect of a reputation penalty， which will also affectthe rights of the administrative counterpart and lead to the loss of property due to theamplification effect of public opinion. The disclosure of administrative penalty deci‐sions can achieve the purpose of penalty with low cost， quick effect， vast influence andother characteristics， in practice， frequently favored by the administrative departments，and also provide adequate measures for the administrative departments to carry outsupervision plan， issue the public warning， offer anti-risk advice， and develop publiceducational programs.However， in the age of information technology， with the rapidspread of information， the negative impact of disclosure does not disappear with theend of the penalty; when increasing penalty decisions are made public， the relevantindividuals， legal persons， or unincorporated departments’ penalty records will forman information database and be permanently preserved. In order to meet the timerequirements of normative and effective protection mechanisms for the parties’ rights， such as personal rights， property rights， and personality rights， and to reduce the work‐load of protecting rights and interests such as the right to privacy， the right to personalinformation and the right to reputation， the administrative departments， when determin‐ing the specific content of the disclosure， should clarify the purpose of disclosure ofthe decision on penalty and the purpose of making the decision on penalty. Therefore，determining the need for disclosure of privacy should be weighed between the publicand private interests， such as the consequences of the decision to impose a penalty andthe consequences of disclosure， the costs of protecting legal interests and implement‐ing penalty， and the joint liabilities of disclosure.In accordance with the current norma‐tive requirements， the judgment on the disclosure of privacy-related administrativepenalty decisions should follow the principle of non-disclosure or disclosure， withexceptions. The determination of exceptions should be combined with the principle ofequivalence and the principle of proportionality on penalty. Meanwhile， the reasons forprotecting the public interest， the consent of the parties， and strengthening the penaltyeffect should be elaborated at a deeper level. Specifically， public interest protectioncan be approached from the perspective of protecting the right to know （especially incases involving public security and public health） and supervising the right to penalty（through the disclosure to put pressure on the administrative departments， and to pro‐vide a platform for public supervision）; the consent of parties should obtain a separate，specific， and definite declaration of will from the interested parties; the strengtheningof the penalty effect can be divided into two types： the target of the penalty for theinfluential offenders of the public and for ordinary offenders of the public. In order tostrengthen the deterrent effect of the disclosure of administrative penalty decisions，and to provide the possibility of timely credit repair after the deterrent purpose isachieved， the administrative departments should strictly confine the scope of the con‐tent for disclosure， which should be stated objectively， and should not be biased infavor of the victim or contain insulting words， to reserve the bottom line for the humandignity of the administrative counterpart.

KEY WORDS： disclosure of administrative penalty decisions; privacy; right topersonal information; right to reputation; public interest