Hong Kong: "Safe Harbour" For Online Service Providers

Last Updated: 24 August 2011
Article by Kenny Wong
Most Read Contributor in Hong Kong, September 2016

Originally published August 23, 2011

Keywords: online service providers, OSPs, copyright infringement, Copyright (Amendment) Bill 2011


Last month, we published a legal update on the Copyright (Amendment) Bill 2011 (the "Bill"). One of the major issues is about the potential liability of online service providers ("OSPs") for copyright infringement occurring on their service platforms.

In this regard, the Bill seeks to introduce a set of "safe harbour" provisions which will shield OSPs from liability in damages or other pecuniary remedy for copyright infringement which occurred on their service platforms so long as certain conditions are met.

The conditions

The conditions which OSPs must comply with in order to be protected under the Bill's safe harbour provisions are set out in the proposed section 88(b) (2):

  1. the OSP has taken reasonable steps to limit or stop the infringement as soon as practicable after it received a notice of alleged infringement, became aware that the infringement has occurred or became aware of the facts and circumstances that would lead inevitably to the conclusion that the infringement has occurred;
  2. the OSP has not received and is not receiving any financial benefit directly attributable to the infringement;
  3. the OSP accommodates and does not interfere with the standard technical measures that are used by copyright owners to identify or protect their copyright works; and
  4. the OSP designates an agent to receive notice of alleged infringements by supplying, through its service, the name, address, telephone number and electronic mail address of the agent.

Code of Practice

The Bill only sets out the basic framework of a notification system for reporting infringement. The safe harbour provisions will be supported by a non-statutory Code of Practice to be published by the Secretary for Commerce and Economic Development (the "Code").

Compliance with the Code is voluntary. The Bill, however, expressly states that an OSP shall be treated as having satisfied the condition stipulated in the proposed section 88(b)(2) if it complies with all the provisions in the Code. The Code will therefore be of significant importance to all OSPs which wish to be protected under the safe harbour provisions.

A draft Code has been formulated and is currently open to the public for consultation, until l9 September 2011. It sets out practical guidelines and procedures for OSPs to follow when they are notified of infringing activities on their service platforms. The draft Code provides three systems for OSPs to implement depending on the type of copyright infringement activities found on their service platforms.

1. The Notice and Notice System

The "Notice and Notice System" applies to OSPs which offer transmission, routing and/or provide access to digital online communications of material of the user's choosing, for which the OSPs do not select or modify the material contained in the transmission.

Any person who believes that a subscriber to an OSP's online service has infringed the copyright of a copyright owner may send a "Notice of Alleged Infringement" to the OSP. The Notice of Alleged Infringement should set out the details of the complainant, the particulars of the alleged infringement and the particulars of the copyright work which is alleged to have been infringed. A template Notice of Alleged Infringement is attached to the draft Code. OSPs are not required to verify the authenticity and contents of a Notice of Alleged Infringement if it contains the full particulars as required by the Code and is duly signed and delivered.

If the Notice of Alleged Infringement cannot be processed for any reason, e.g. the notice refers to an account that is no longer active or the IP address of the subscriber cannot be identified, the OSP should reply to the complainant in writing as soon as practicable. If there is no problem with the Notice of Alleged Infringement, the OSP should send a written notice to the subscriber in question to inform such subscriber of the alleged infringement and the consequences of copyright infringement in Hong Kong.

2. The Notice and Takedown System (Storage)

A different set of guidelines apply to OSPs which store, at the direction of a subscriber, material on their service platforms. As with the Notice and Notice System summarised above, the procedure starts with a person sending the relevant OSP a Notice of Alleged Infringement.

Upon receiving the Notice of Alleged Infringement, the OSP should "takedown" the infringing material or activity (i.e. remove or disable access to such infringing material or activity) within a specific timeframe. The amount of time an OSP has for taking down the infringing material or activity depends on the status of the copyright work. For infringement relating to pre-release or newly released copyright work, the OSP should take action within 1/3 working days (to be decided) of receiving the Notice of Alleged Infringement. For copyright work which has already been released for some time, the OSP would have 7/10 working days (to be decided).

The OSP should, after removing or disabling access to the infringing material, send a written notice to the subscriber in question to inform such subscriber of the alleged infringement, the consequences of copyright infringement in Hong Kong and whether the subscriber wishes to dispute or deny the alleged infringement. If the subscriber wishes to dispute or deny the alleged infringement, the subscriber should send a "Counter Notice" to the OSP within 20 working days of receiving the OSP's notice.

The Counter Notice should, as indicated by the template Counter Notice attached to the draft Code, contain (i) the particulars of the subscriber; (ii) the particulars of the material that has been removed or to which access has been disabled; and (iii) a statement that the subscriber believes, in good faith, that the removal or disabling of access to the material was the result of a mistake or misidentification. The OSP has no obligation to verify the authenticity and contents of a Counter Notice, even though only the OSP would know whether the particulars of the subscriber contained in the Counter Notice are true.

If the form and delivery of the Counter Notice are proper and valid, the OSP should promptly send a written notice to the complainant enclosing a copy of the Counter Notice and a statement that if the complainant does not, within 10 working days of receiving the notice, inform the OSP that the copyright owner or its authorised representative has commenced proceedings in Hong Kong seeking a court order to restrain the subscriber from engaging in the alleged infringement on the OSP's service platform, the OSP will reinstate or cease disabling access to such material or activity.

If an OSP becomes aware of infringing material or activity residing on its service platform, it may commence the takedown procedure outlined above on its own initiative, rather than wait for a person to submit a Notice of Alleged Infringement.

3. The Notice and Takedown System (Information Location Tools )

This system applies to those OSPs which have linked or referred users via information location tools to an online location containing infringing material or activity. If a person sends a Notice of Alleged Infringement to an OSP, the OSP should disable access to the alleged infringing material within 1/3 working days if the copyright work involved is pre-release or newly released, and 7/10 working days in other cases.

False statements

To ensure that OSPs will not be overburdened with an overwhelming volume of infringement notices, the proposed section 88E imposes criminal liability for knowingly or recklessly making a false statement in a Notice of Alleged Infringement or Counter Notice. A person who commits an offence under the proposed section 88E will be liable on conviction to a fine of HK$5,000 and to imprisonment for two years.

Further, under the proposed section 88F, any person who knowingly makes a false statement or a statement which the person does not believe to be true in a material respect in a Notice of Alleged Infringement or Counter Notice will be liable in damages to any person who suffers loss or damage as a result of the statement.

Learn more about our Hong Kong office and Intellectual Property practice.

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2011. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

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.

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”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.