China: Chinese Cybersecurity: Questions Remain Despite New Guidance

Last Updated: 19 September 2017
Article by Jake Huang and Jamie Rowlands

Despite coming into force on 1 June 2017, China's new Cybersecurity Law (the "Law" or the "Cybersecurity Law") continues to present many unanswered questions.

Although the Cybersecurity Law sets out the basic legal framework for China's enhanced control and protection of cyberspace, there is continued uncertainty regarding key provisions such as Key Information Infrastructures (KIIs) and security assessment provisions.

The Cybersecurity Administration of China has published draft regulations with the aim of alleviating some of the uncertainty. The first such draft, Measures for the Security Assessment of Personal Information and Important Data to be Transmitted Abroad (the "Measures"), was published in April 2017. More recently, on 11 July 2017, the draft Provisions on Protecting Key Information Infrastructures (the "Provisions") were circulated for public consultation. The public consultation ended on 10 August 2017.

Below, we assess the potential impact of the Measures and the Provisions and the extent to which they clarify the uncertainties caused by the Cybersecurity Law.

KIIs - What are they and what are the obligations?

As explained in previous articles, China's Cybersecurity Law broadly defines KIIs as "important industries including but not limited to public communications, information services, energy, transportation, finance, public services, [and] electronic government affairs". KIIs are infrastructures that "upon becoming destroyed, losing its function or where the data has been leaked, may severely endanger national security, the national economy, national health, or the public interest".

One of the key measures of the Law is the establishment of a default position that companies who operate KIIs are required to store "Personal Information" and "Important Data" collected or generated during their operation in China on servers physically located in China, subject to the exception explained in the Measures (discussed below). Personal Information is comprehensively defined by the Law and focuses on information that can in itself, or in combination with other information, be used to identify a natural person. Important Data, on the other hand, is not defined by the Cybersecurity Law and there is significant uncertainty about the type of information operators of KIIs will be obliged to store on Chinese servers.

The Law did set out a carve out to the above default position, which enabled operators of KIIs to transfer data out of China provided they go through a security assessment procedure. The problem is that the details of the security assessment procedure were not clearly set out in the Law. Uncertainties such as this, combined with a vague definition of KIIs, are likely to make it difficult for companies to know whether they are complying with the Law. As a result of this uncertainty, we recommend that companies should err on the side of caution when collecting and transferring data which could fall under the definition of "Personal Information" and/or "Important Data".

Measures Relating to Security Assessment

One of the primary drivers behind the Measures was to try to provide additional guidance as to the security assessment procedure to try to give better clarity on what data could be transferred out of China. The Measures state that the assessment procedure comprises two forms: self-assessment and assessment by the Chinese authorities.

Under the Measures, KII operators still face the most onerous obligations, because they must always go through both the self-assessment procedure and a security assessment by the Chinese authorities when transferring data overseas. However, the Measures extend the self-assessment requirement to include not just KII operators but also any network operator, individual or organisation collecting Personal Information and/or Important Data. The general position under the Measures is that self-assessment is all that will be necessary in order to transfer Personal Information and/or Important Data abroad. However, there are some exceptions to the general position; for example, network operators seeking to transfer significant amounts of data abroad will face further security assessment by the Chinese authorities.

What Changes are made by the Provisions?

The Provisions were introduced in order to focus on perceived deficiencies in the definition and regulation of KIIs.

They extend the definition of what amounts to so-called important industries in the context of KIIs from the original Law as drafted. Under the Provisions, "important industries" include:

  1. Government bodies and entities in industries such as energy, finance, transportation, water conservancy, medical and sanitary, education, social security, environment protection and public utility;
  2. Information network entities such as telecommunication networks, television broadcasting networks, internet networks, and entities providing cloud services, big data and other large-size public information network services;
  3. Research and production entities in industries such as science, national defence, large equipment, chemical, food and drug;
  4. ews entities such as radio stations, television stations and news agencies;
  5. Other key entities.

The inclusion of "other key entities", of course, allows for a wider application of the Cybersecurity Law and, once again, creates significant uncertainty. However, it should be noted that these industries will only be KIIs if their destruction, loss or damage will severely endanger national security, the economy, national health or the public interest. While the Provisions seek to clarify the "important industries" limb of the definition of KIIs, what is meant by "endangering national security, the economy national health of the public interest", remains undefined. Therefore, there is continued uncertainty in spite of the provisions which will provide little comfort to companies dealing with Personal Information or Important Data in China.


The draft Provisions' public consultation ended on 10 August 2017, and it is unknown when a final version will be published and take effect. However, we believe that these draft Provisions represent the authorities' attitude and shed some light on the areas to be covered in the final definition of KIIs.

Clear attempts to clarify the Law have so far fallen short to those doing business in China. At present, it is difficult for those processing, storing and transferring Personal Information or so-called Important Data to do anything other than adopt a conservative strategy by assuming they are an operator of KIIs.

There is hope that in the future the authorities will produce a guidebook identifying KII operators, and the Provisions state an intent to do this. For the purposes of the Law, as supplemented by the Measures and the Provisions, this means ensuring a self-assessment procedure is in place - to be carried out whenever data is transferred abroad. While the Provisions allude that any such guidebook will clarify the issue of KII operators, we do not know what it will say or when it will be published. Watch this space!

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.

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

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

Similar Articles
Relevancy Powered by MondaqAI
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
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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 (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

To Use 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.


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.


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