China: New rules of personal rights and interest protection in the Internet realm

Last Updated: 5 May 2015
Article by Qu Miao

The Supreme People's Court (SPC) promulgated Rules of the Supreme People's Court to resolve Issues concerning the law application to the Trial of Civil Disputes of Personal rights Infringement through Information Networks (Rules) on press conference on October 9th, 2014, and the Rules took effective the next day. The SPC also published eight typical cases related to the Rules at the same time. The promulgation of the Rules and cases caught extensive attention and heated up the discussions on the internet and media. This article interprets the Act from the perspective of how to protect the legitimate rights and interests under the act as follows:

  1. Corporations, other organizations and natural persons all have grounds to protect their rights under the Rules

Article 1 of the Rules provide clearly that the Rules only cover civil disputes regarding the infringements of personal rights and interests by utilizing information networks, the above mentioned personal rights and interests include right of publicity, business name rights, right of reputation, right of honor, portrait rights and right of privacy. It can be interpreted that both corporations and natural persons may protect their rights under the Rules. For the business entities, the personal rights and interests protected under General Principles of the Civil Law including business name rights, right of reputation and right of honor etc.

In addition, the SPC's spokesman also confirmed that besides the protection of corporations and natural persons, the Act is equally applicable to the protection of personal rights and interests of the other organizations and groups.

  1. Tortfeasors, re-printers, internet service providers and abettors all can be sued

Article 3 of the Rules provide specifically that the plaintiff can sue the internet users and related internet service providers who committed the tort separately or jointly. The plaintiff also can sue internet service providers separately only when it is unable to identify the identities of the internet users who actually committed the tort.

Furthermore, Article 10 of the Rules provides that people who reprint the infringing information may bear the corresponding legal liabilities according to their mistakes and the extent of the mistakes. The primary factors to determine the presence of the liabilities and the types of the liabilities include:

  • the duty of care undertaken by re-printers in accordance with its nature and the scope of the action;
  • the likelihood of infringement to the personal rights of a third person by his or her action; and
  • whether any substantial amendment was made to reprinted information, or whether title of the article was added or altered, leading to the likelihood of severe inconformity to the contents of the article or misleading the public.

Accordingly, the SPC's spokesman also mentioned that celebrities with greater social infl uence like Big V on the Internet shall assume a greater duty of care for their re-posts on the press conference.

Besides, according to the Article 15 of the Rules, "Where a person employs, organizes, abetts or helps to publish or reproduce information online that infringes personal rights of a third person, and is requested by the tortfeasor to bear joint liabilities, the people's court shall support such requests." It means the tort abettors, reprinters may also be sued for joint infringement.

  1. The plaintiff may acquire the information of the infringer from internet service providers by court action

According to Article 4 of the Rules, the plaintiff may sue internet service providers separately only when it is unable to determine the identities of the internet users who committed the tort, if the internet service providers claim that the infringing material is provided by the users, then the plaintiff may request the court to order the internet service providers to provide information of the infringer. If they refuse to provide such information without reasonable cause, the people's court may take punishment measures in accordance with the corresponding provisions concerning the refusal of cooperation during the investigation or execution in the Civil Procedure Law. The plaintiff may add the alleged user/infringer as codefendants after acquiring this information.

This provision is intended to solve the universal problem that it's difficult to take legal action as the identities of the users on the internet are hard to identify. Previously when the plaintiff requested the infringer's information from the internet service providers, the internet service providers were usually reluctant to disclose due to the concern of privacy protection or breach of contracts etc. It's diffi cult to balance the interests of all parties. According to the Rules, the plaintiffs along with the internet service providers will be able to solve this problem in the court presided legal proceedings.

  1. Take-down Notice sent to the internet providers by the plaintiffs shall meet the requirements

According to Article 36 of the Tort Law and Article 5 of the Rules, upon the discovery of the infringing content, the plaintiff may send notice to the internet service providers, and request for removal; but the notice must be sent in written form or in a way consistent with the means published by the internet service providers, indicating the IP address for actions, or any other relevant information for the purpose of accurately locating the infringing contents, as well as the reason for the request for removal.

According to this provision, when the plaintiff sends a notice to the internet service providers, he/she needs to pay attention to the format of the notice, make sure it is consistent with the specifi ed requirements, and keeps the proofs of the submission of notices, as well as any replies received from the internet service providers for future use.

  1. Corporations may sue if an internet tort leads to the loss of confi dence by the public or impair the social assessments of the its products and services

According to Article 11 of the Rules, if libeling or slandering of the internet users or internet service providers leads to the loss of confidence in business entities by the public, and impair the social assessments of the companies' products and services, the business entities can still sue the internet users and the internet service providers.

Libeling and slandering of business entities or their products and services may also be within the scope of the Anti-Unfair Competition Law. But in general, they require the infringer to be qualifi ed as business undertakers. As it is often difficult to determine the identities of infringers in the internet realm, there are diffi culties to enforce the right.

On the contrary, there are difficulties to claim against consumers for infringement, because "Interpretation of the SPC on Certain Issues Concerning Trial of Cases Involving Rights to Reputation" provide specifically that "the criticism or comment of a consumer on the quality of products or service of a manufacturer, operator, or seller shall not be deemed as an act of infringement to the rights to reputation of a third person. However, if a consumer takes advantage of the criticism or comment to libel or denigrate and damage the reputation of the manufacturer, operator, or seller, the act of the consumer shall be determined as an act of infringement to the rights to reputation".

After the promulgation of the Rules, entities may have the right to protect their rights against internet infringement despite the identities of the infringers.

  1. Different choices of territorial jurisdiction

The Rules also provide flexible choices of territorial jurisdiction. Article 2 of the Rules stipulates that "A litigation instituted against the infringement of personal rights through information networks shall be ruled by the people's court at the place where the tort was conducted or at the defendant's domicile. Places where a tort was conducted include the location of terminal equipment such as the computer used by infringers, while places where infringement results occur include the domicile of the infringed person."

Thus the plaintiff may choose the court of his domicile, the place where the computer used for committing the tort is, the place where the internet service providers are, or the domicile of the alleged users/infringers according to the different situations.

  1. Illegal removal of posts won't be recognized by the law

Previously due to the difficulties of locating the users, and the time and cost of legal proceedings, it is common that the infringed person tries to resolve problems through private paid service, like paying off the professional hackers or internet service providers to take measures such as removal, screening, blocking, and etc.

Article 14 of the Rules stipulates specifically that "If the infringed person reaches an agreement with the alleged infringer or the provider of network services where one party pays remunerations and the other party provides services such as removal, screening and blocking, the people's court shall hold the agreement to be void".

  1. The maximum damages of CNY 500,000 legal compensation available at discretion of court

According to Article 16 and Article 17 of the Rules, the plaintiff may receive the legal remedy under the current law in internet rights protection including formal apology, elimination of adverse impact, restoration of reputation and compensation for loss etc.

In addition, Article 18 of the Rules also provided expressly that the cost incurred by enforcing rights (include attorney's fee and investigation costs etc.) shall be included in the damages recoverable by the plaintiff. The people's court may determine a legal compensation below CNY 500,000 at its discretion according to the facts of the case.

Moreover, depending on the situations, the plaintiff may also request for injunctive relief before litigation or during litigation against the defendant according to the provisions of Chapter 9 of the Civil Procedure Law, which include property preservation and evidence preservation. These kinds of remedy measures are undoubtedly very practical and important for disputes arise from personal rights and interests.

In sum, the enactment and the promulgation of the Act demonstrate the aggressive steppingin of the courts in increasing network disputes, and the efforts of the courts to provide a fair and reasonable dispute resolution scheme for the parties on the Internet. It is promising that the chaotic situations that people have to solve internet disputes via private effort, industrial self-discipline and administrative complaints would be improved. In future enforcement, the infringed may protect their legitimate rights and interests effectively by seeking relieves from legal proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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