China: Regulating Spam in the Middle Kingdom - China´s New Anti-Spam Regulations

Originally published April 2006

New regulations designed to limit the amount of unsolicited advertising email sent in China became effective on March 30, 2006. Over the last several years, China has developed a reputation for hosting many global spammers. This has occurred despite China's strict regulatory regime governing online activities because, until now, it has not had national level regulations prohibiting advertising email (commonly referred to as "spam"). The national government began informally addressing the problem several years ago through the government backed Internet Society of China ("ISC")1 which established an anti-spam division2 and issued the "Standards for Public Email Service"3 on September 1, 2004. These voluntary industry guidelines were publicly adopted by some companies, but there was no enforcement mechanism. On March 30, 2006, the Administration of Email Services Procedures (the "Email Procedures")4 promulgated by the Ministry of Information Industry ("MII") came into effect. The Email Procedures impose restrictions on senders of email, particularly advertising email, as well as on email service providers which are meant to work together to provide a mechanism for eliminating spam.

Obligations Affecting All Advertising Emails

Like the anti-spam laws of many other countries, the Email Procedures include labeling requirements, require that each advertising email contain certain information and require that individuals be provided with the right to opt-out of receiving emails.

Labeling Obligation. The Email Procedures require e-mail advertisements to include the term "AD" or the equivalent Chinese characters in the subject field of every advertising email sent by an entity in China. This is meant to make it easier for recipients to identify and/or filter advertising email.

Opt-In Consent to Receive Advertising Email. Advertising email may be sent only to recipients who have expressly consented to receiving advertising email from a vendor. While this would prevent a company from sending unsolicited emails to prospective customers, it should not prevent a company from sending an email which does not constitute advertising to existing customers, e.g., emails relating to the goods and services the organization is currently providing or inquiries regarding whether the consumer wishes to receive advertising emails from the vendor in the future.

Opt-Out Information. In addition, any entity within China sending advertising email must provide an opt-out mechanism within the body of the advertising emails. The advertising email must also include contact information, i.e., an email address that is valid for at least 30 days from the date that the advertising email was sent, so that individuals can exercise their right to opt-out of receiving future advertising emails from the vendor.

Prohibited Activities. In response to the apparently wide-spread use of zombie-nets, the Email Procedures also prohibit the sending of email from someone else's computer without authorization. They also prohibit email address harvesting, and the selling, sharing or exchanging of harvested email addresses, or sending email to randomly generated addresses. They also prohibit hiding or forging email headers including the sender, receiver and transmission route identifying its source, destination or transmission route.

Content Restrictions. China's telecommunications and Internet regulations currently impose various restrictions on online content. To address the possible ambiguity of whether specific content was permissible in email, the Email Procedures incorporate by reference several articles from the Telecommunications Regulations that restrict certain types of content, including prohibitions on disclosure of state secrets; incitement of ethnic hatred or racial discrimination; spreading of rumors; propagation of obscenity, pornography, gambling, violence, murder or fear; inciting the commission of crimes; or insulting or slandering others. Under the Email Procedures, individuals are prohibited from using email to engage in hacking, stealing or damaging information of other people on a network, spreading computer viruses, or otherwise compromising the security of a computer network.

Key Obligations on Email Service Providers

The Email Procedures impose obligations on entities that provide email services on either a commercial or non-profit basis. The Email Procedures establish a registration and filing system which is meant to identify all entities in China that provide email services to third parties.

Registration Requirements. The Email Procedures require any entity intending to provide commercial service to end-users for sending and receiving email within China to first obtain a value-added telecommunication services business license ("VAS License") or, in the case of a non-profit entity, complete the appropriate registration procedures. When an email service provider intends to begin operation, in order to obtain Internet access from an Internet service provider ("ISP"), the email service provider must submit the VAS License or evidence of having completed the appropriate non-profit filing. At least 20 days prior to commencing operation of email services, the email service provider is required to register the IP addresses of all email servers with the MII or the provincial branch of the Administration of Communications.

Operational Requirements for Email Service Providers. Email service providers are required operate email services as follows:

  • email services must comply with technical specifications established by the MII;
  • anonymous email forwarding must be prevented by disabling open-relays;
  • security management is required, and remedial measures must be immediately undertaken when network security flaws are discovered;
  • service providers must maintain copies of all emails sent and received, as well as the email addresses and IP addresses of senders/receivers for at least 60 days;
  • service providers must clearly inform users of the services' content and instructions; and
  • service providers must maintain the confidentiality of users' registration information and email addresses, which cannot be used or disclosed without the consent of its owners.

Email service providers are also obligated to maintain the confidentiality of users' email correspondence, with email content only being disclosed in the case of national security concerns or a criminal investigation.

Fines Applicable to Email Service Providers. If email service providers violate the Email Procedures, they may be subject to fines of up to RMB 30,000 (US $3,750) per occurrence and, in severe cases, criminal prosecution.

Reporting Obligations

The Email Procedures provide that a new "Complaint and Handling Center for Email Abuse" is to be established by the ISC under the authority of the MII. This Email Abuse Center will be responsible for receiving and coordinating reports of email violations. Both email service providers and ISPs are required to accept complaints regarding email related issues from users. Depending on the nature of the complaint, the Email Abuse Center is required to forward it to the appropriate local or national authorities. Any organization with its email address being reported is required to launch an investigation immediately in order to address the spam complaints, and then to report the results to the Email Abuse Center.

Monetary Penalties

The Email Procedures could potentially have a significant impact on organizations based in China. They provide for monetary fines of up to RMB 30,000 (US $3,750). What is unclear at this time is if the fines will be imposed on a per email basis or on each email campaign.

Conclusions

Companies sending emails within China should carefully review their email policy and guidelines to ensure that they comply with the new Email Procedures. If fines are imposed on a per email basis, the fines could be enormous for any organization sending email in China.

Footnotes

1. http://www.isc.org.cn

2. http://www.anti-spam.cn.

3. http://www.english.anti-spam.cn/newshow.asp?NEWSID=2849.

4. Administration of Email Services Procedures, Circular No. 38, Ministry of Information Industries (promulgated February 20, 2006 and effective March 30, 2006).

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions