After purchasing an insurance policy through the Alipay platform, Mr. Zhang, a consumer, found that his mobile phone had been “remotely screen-recorded”. To this end, he sued Alipay (Hangzhou) Information Technology Co., Ltd. (hereinafter referred to as “Alipay”), Ant Insurance Agency Co., Ltd. (hereinafter referred to as “Ant Insurance”), and Taiping Property Insurance Co., Ltd. Zhejiang Branch (hereinafter referred to as “Taiping Property Insurance”) in court.
On December 3, the case was heard in the first instance at the Beijing Internet Court. During the trial, Alipay argued that it was just a platform and had nothing to do with “remote screen recording”, Ant Insurance said that the video was not a “screen recording” but “structured storage”, and Taiping Property Insurance said that the video “just looked like a video”. At present, the case is still under further proceedings.
Event: After a consumer buys an insurance claim and is denied
Unexpectedly found that the purchase process was “screen recorded”
It all started more than two years ago. In January 2022, Mr. Zhang purchased a health insurance on the Alipay platform, and in December of the same year, after Mr. Zhang fell ill, he contacted the insurance company to request a claim, but the claim was refused. On January 3, 2023, Mr. Zhang sued the insurance company to the Changsha Tianxin District People’s Court.
During the trial, Taiping Property Insurance submitted a mobile phone screen recording video titled “Underwriting Backtracking Information”, which was recorded for 3 minutes and 23 seconds, which recorded the whole process of Mr. Zhang’s entry into the Alipay page to browse the introduction of a certain health insurance to the final payment of the insurance contract. The agent of the insurance company said in court that this was the whole process of Mr. Zhang’s operation of the mobile phone to purchase insurance.
“I have never authorized any party to screen record my phone operations.” Mr. Zhang said that he had no idea when his mobile phone was recorded in the background, and asked the insurance company to explain how the mobile phone screen recording was obtained. According to the trial records, the insurance company’s agent stated that “when the plaintiff (Mr. Zhang) places an order on the Alipay platform, a backtracking record will be formed, which will be synchronized by Alipay to the defendant (Taiping Property Insurance)”.
Subsequently, Mr. Zhang sued Alipay, Ant Insurance, and Taiping Property Insurance to the Beijing Internet Court on the grounds of invasion of privacy and citizens’ personal information, demanding that the Alipay platform completely stop the unauthorized collection of users’ mobile phone screen information, compensate him 1 yuan, and publicly apologize to him through major central news units and mainstream market-oriented media.
Trial: Ant Guarantees fulfills its legal obligations
The plaintiff challenged that it had not given detailed information
At the trial on December 3, Alipay replied that Ant Insurance provided insurance agency services to users in the case, and that it was not the subject of the transaction involved in the case, and had no access to relevant data and information, so it had no direct interest in the case and was not a qualified defendant in the case. Mr. Zhang believes that this case is a tort liability dispute, and he purchased insurance through the Alipay platform.
Ant Insurance replied that the traceable records are not screen recordings, but structured storage and do not collect other information. Ant Insurance’s collection of information involved in the case and provision to the insurance company is to fulfill its statutory regulatory obligations; Ant Bao has informed Mr. Zhang about the collection and provision of information involved in the case. “When I entered the insurance page, it was written ‘We will record your operation safely’, and the plaintiff clicked ‘Got it’ to confirm.” Ant Insurance also said that retrospective management is an industry practice, and there are related service providers in the market.
In this regard, Mr. Zhang testified that the so-called “safe record of your operation” and clicking “know” are decorations. The video shows that the screen recording has started before I click “I know”, and in fact, how long the recording has been, when it will start recording, and when it will end, Alipay, including myself, and a large number of users of Ant Bao do not know. “Even the position and trajectory of finger touches and swipes are recorded, does it mean that the camera can also be called, and even the entire phone can be monitored?”
Taiping P&C agreed with Ant Insurance’s defense and provided a similar response. As for the explanation of “screen recording”, it said, “The backtracking information has been processed by technology, but it only looks like a video to the outside”.
It is worth mentioning that in the case heard by the Tianxin District People’s Court of Changsha City, the lawyer representing the insurance company stated that its “backtracking video” came from Alipay. In a case accepted by the Beijing Internet Court, the insurance company’s lawyer stated in court that its “backtracking video” came from Ant Bao. The lawyer insisted that the statements of the lawyer representing the previous case were inconsistent with the facts. At present, the trial of the case has not yet been debated, and the case is still under further trial.
Expert: Collect user information
It must be justifiably necessary and should be communicated in a clear and conspicuous manner
Zhu Wei, a member of the Expert Committee of the China Consumers Association, an expert of the Cyberspace Administration of China, and deputy director of the Communication Law Research Center of the China University of Political Science and Law, told a reporter from Beiqing Daily that without the consent of the parties, the three defendants did excessive information collection, violating the Personal Information Protection Law. “According to the principle of ‘superior law is superior to lower law’, even if the CBIRC stipulates it, it cannot conflict with the Personal Information Protection Law and the Civil Code, because these two laws are higher-level laws.”
So, the platform prompted Mr. Zhang on the insurance page that “your operation will be recorded safely”, is this a notification? Zhu Wei believes that this is not a safety notice, “What is the purpose of the record? How is it recorded? What is the shelf life? This is a safety notice specified in the Personal Information Protection Act. In addition, as for “structured storage”, Zhu Wei believes that this is a storage method similar to an Excel spreadsheet, and “in this process, the defendant should also fulfill the duty of classified protection and carry out desensitization treatment”.
Hu Gang, deputy secretary-general of the Legislative Affairs Committee of the Internet Society of China, believes that the whereabouts and tracks are sensitive personal information, and can only be used unless it is specifically needed, based on a special purpose, and notified to users in advance in a conspicuous manner. The Personal Information Protection Law stipulates that the processing of sensitive personal information shall follow the principles of legality, legitimacy, necessity and good faith. Hu Gang believes that Ant Insurance is a small program on Alipay, and the small program is parasitic on the big program, and the relevant operations carried out by the small program are because the big program has obtained a large number of user permissions, Alipay and Ant Insurance are companies with high influence in the industry, and they should take the lead in setting an example, not only legal but also compliant, and demand themselves with a higher moral level and business ethics.
Xu Hao, a lawyer at Beijing Jingshi Law Firm, believes that it is illegal to record the payment process of insurance without the user’s authorization and consent, and according to Article 1032 of the Civil Code of the People’s Republic of China, natural persons enjoy the right to privacy, and no organization or individual may infringe on the privacy of others by means of spying, intrusion, leakage, disclosure, etc. Unauthorized screen recording, especially when it involves other people’s private activities or intimate information, violates the privacy rights of others. In the process of purchasing the corresponding product through the mobile app, if the user wants to record the user’s operation process, the user must be prompted, and the way of prompting must be clear and conspicuous, otherwise it is suspected of violating the law.