CHINA
N/A
Pillar Intermediary liability |
Indicator Safe harbour for intermediaries for copyright infringement
Lack of intermediary liability framework in place for copyright infringements
A basic legal framework on intermediary liability for copyright infringement is absent in China's law and jurisprudence. A safe harbour defence for internet intermediaries providing hosting services is spelt out in the Guiding Framework on Protection of Copyright for Network Dissemination (Art. 14-17, 22). The hosting defence established in Art. 22, only applies to service providers who host third-party materials. However, Art. 36 of the Tort Law of the People's Republic of China states that a "network service provider" shall assume the tort liability if it infringes "upon the civil right or interest of another person."
Furthermore, the Tort Law allows victims of the tort to notify the network service provider to demand the deletion, blocking or disconnection of the cause of infringement. Failing to do so can lead to further liability for the network provider in the event of further harm to the user. Finally, liability can be further increased in the event that the network service provider knew of the infringement but did not take action.
Furthermore, the Tort Law allows victims of the tort to notify the network service provider to demand the deletion, blocking or disconnection of the cause of infringement. Failing to do so can lead to further liability for the network provider in the event of further harm to the user. Finally, liability can be further increased in the event that the network service provider knew of the infringement but did not take action.
Coverage Internet intermediaries
Sources
- https://web.archive.org/web/20240129171425/http://www.article19.org/data/files/Intermediaries_ENGLISH.pdf
- https://web.archive.org/web/20200222120116/http://www.jetlaw.org/2016/01/18/executives-of-a-chinese-online-video-sharing-service-provider-stood-trial-for-internet-pornography/
- https://web.archive.org/web/20220120082414/http://www.wipo.int/export/sites/www/copyright/en/doc/liability_of_internet_intermediaries.pdf
- https://web.archive.org/web/20180425225959/http://www.wipo.int/wipolex/en/text.jsp?file_id=182630
- https://web.archive.org/web/20170402022917/http://www.wipo.int/wipolex/en/details.jsp?id=13403
- https://web.archive.org/web/20231210140045/http://www.hrw.org/news/2013/01/04/china-renewed-restrictions-send-online-chill
- https://web.archive.org/web/20240226143908/http://www.gov.cn/zwgk/2006-05/29/content_294000.htm
- https://web.archive.org/web/20220112052017/http://www.gov.cn/flfg/2009-12/26/content_1497435.htm
- https://web.archive.org/web/20200714182556/http://www.npc.gov.cn/wxzl/wxzl/2000-12/17/content_4680.htm
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CHINA
Since October 2020
Pillar Cross-border data policies |
Indicator Conditional flow regime
Amendment to the Information Security Technology – Personal Information Security Specification (GB/T 35273-2020) (信息安全技术-个人信息安全规范》(GB/T 35273-2020)修正案)
Section 9.2.i of the 2020 Specification provides that where personal biometric information must not be shared or transferred unless actually essential for business needs, in which case the personal information subject must be separately informed of the purpose, types of biometrics involved, identification of the recipient and its data security capacity and the personal information subject consent must be explicitly obtained.
Coverage Horizontal
Sources
- https://web.archive.org/web/20240617005345/https://www.wilmerhale.com/en/insights/client-alerts/20200324-china-issues-new-personal-information-security-specification
- https://web.archive.org/web/20220524101741/https://www.pipchina.cn/uploads/20210926/1632643529092037513.pdf
- https://web.archive.org/web/20230910032835/https://www.tc260.org.cn/upload/2020-09-18/1600432872689070371.pdf
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CHINA
N/A
Pillar Intermediary liability |
Indicator Safe harbour for intermediaries for any activity other than copyright infringement
Lack of intermediary liability framework in place for copyright infringements
A basic legal framework on intermediary liability beyond copyright infringement is absent in China's law and jurisprudence. A safe harbour defence for internet intermediaries providing hosting services is spelt out in the Guiding Framework on Protection of Copyright for Network Dissemination (Art. 14-17, 22). The hosting defence established in Art. 22, only applies to service providers who host third-party materials. However, Art. 36 of the Tort Law of the People's Republic of China states that a "network service provider" shall assume the tort liability if it infringes "upon the civil right or interest of another person."
Furthermore, the Tort Law allows victims of the tort to notify the network service provider to demand the deletion, blocking or disconnection of the cause of infringement. Failing to do so can lead to further liability for the network provider in the event of further harm to the user. Finally, liability can be further increased in the event that the network service provider knew of the infringement but did not take action.
Furthermore, the Tort Law allows victims of the tort to notify the network service provider to demand the deletion, blocking or disconnection of the cause of infringement. Failing to do so can lead to further liability for the network provider in the event of further harm to the user. Finally, liability can be further increased in the event that the network service provider knew of the infringement but did not take action.
Coverage Internet intermediaries
Sources
- https://web.archive.org/web/20240129171425/http://www.article19.org/data/files/Intermediaries_ENGLISH.pdf
- https://web.archive.org/web/20200222120116/http://www.jetlaw.org/2016/01/18/executives-of-a-chinese-online-video-sharing-service-provider-stood-trial-for-internet-pornography/
- https://web.archive.org/web/20220120082414/http://www.wipo.int/export/sites/www/copyright/en/doc/liability_of_internet_intermediaries.pdf
- https://web.archive.org/web/20180425225959/http://www.wipo.int/wipolex/en/text.jsp?file_id=182630
- https://web.archive.org/web/20170402022917/http://www.wipo.int/wipolex/en/details.jsp?id=13403
- https://web.archive.org/web/20231210140045/http://www.hrw.org/news/2013/01/04/china-renewed-restrictions-send-online-chill
- https://web.archive.org/web/20240226143908/http://www.gov.cn/zwgk/2006-05/29/content_294000.htm
- https://web.archive.org/web/20220112052017/http://www.gov.cn/flfg/2009-12/26/content_1497435.htm
- https://web.archive.org/web/20200714182556/http://www.npc.gov.cn/wxzl/wxzl/2000-12/17/content_4680.htm
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CHINA
N/A
Pillar Cross-border data policies |
Indicator Participation in trade agreements committing to open cross-border data flows
Lack of participation in agreements with binding commitments on data flows
China has not joined any agreement with binding commitments on data flows.
Coverage Horizontal
CHINA
Since June 2016, entry into force in August 2016
Pillar Intermediary liability |
Indicator User identity requirement
Administrative Provisions on Information Services of Mobile Internet Application Programs (移动互联网应用程序的信息服务管理规定)
According to the Administrative Provisions on Information Services of Mobile Internet Application Program, app providers must ensure that new app users register with their real names by verifying users’ mobile phone numbers and/or other identity information.
Coverage Internet app providers and mobile Internet app stores
Sources
- https://web.archive.org/web/20200227150425/http://www.loc.gov/law/foreign-news/article/china-cyberspace-administration-releases-new-rules-on-mobile-apps/
- https://web.archive.org/web/20200215210816/https://www.cac.gov.cn/2016-06/28/c_1119122192.htm
- https://web.archive.org/web/20200312125139/http://www.cac.gov.cn/2016-06/28/c_1119122192.htm
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CHINA
Since December 2015, entry into force in January 2016
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Map Management Regulations (地图管理条例)
According to Art. 34 of Map Management Regulations, online maps are required to set up their server inside the country and acquire an official certificate.
Coverage Maps services
Sources
- https://web.archive.org/web/20201125032510/https://www.bloomberg.com/news/articles/2015-12-17/china-cracks-down-on-politically-incorrect-maps
- https://web.archive.org/web/20171105173843/http://shanghaiist.com/2015/12/17/dont_get_caught_with_wrong_maps.php
- https://web.archive.org/web/20220205220322/http://www.businessinsider.com/companies-must-keep-map-data-on-servers-within-chinas-borders-2015-12?IR=T
- https://web.archive.org/web/20190319091120/http://english.gov.cn/policies/latest_releases/2015/12/14/content_281475253904932.htm
- https://web.archive.org/web/20241202145504/https://www.global-regulation.com/translation/china/3024692/map-regulations.html
- https://web.archive.org/web/20220207175703/http://www.gov.cn/zhengce/content/2015-12/14/content_10403.htm
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CHINA
Since September 2000, last amended in February 2016
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Telecommunications Regulations of the People’s Republic of China (中华人民共和国电信条例)
It is reported that China's Telecommunications Regulations require all data collected within the country to be stored on Chinese servers. However, the relevant article has not been found in the regulations. Moreover, it is reported that, as a result of this regulation, Hewlett-Packard, Qualcomm, and Uber had to divest more than 50% of their businesses in China to Chinese companies to avoid fines.
Coverage Telecommunication services and cloud services
Sources
- https://web.archive.org/web/20231215121402/https://www.usitc.gov/publications/332/pub4716.pdf
- https://web.archive.org/web/20231229235811/http://www.china.org.cn/business/laws_regulations/2010-01/20/content_19273945.htm
- https://web.archive.org/web/20211021114802/https://www.kneppelhout.com/news/e-commerce-platform-applying-for-edi-license-in-china
- https://web.archive.org/web/20230309072123/http://www.gov.cn/zhengce/2020-12/26/content_5574368.htm
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CHINA
Since November 2016, entry into force in June 2017
Since July 2022, entry into force in September 2022
Since July 2022, entry into force in September 2022
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Cybersecurity Law (网络安全法)
Outbound Data Transfer Security Assessment Measures (数据出境安全评估办法)
Outbound Data Transfer Security Assessment Measures (数据出境安全评估办法)
Art. 37 of the Cybersecurity Law requires "key information infrastructure" operators to store personal information and critical data within China. Personal information and critical data can be stored outside of China where there is a genuine need for business; in such cases a "security assessment" needs to be conducted in accordance with procedures formulated by the Cyberspace Administration of China (CAC) in collabouration with other authorities.
Art. 4 of the Outbound Data Transfer Security Assessment Measures, promulgated by the CAC, outlines four situations where a security assessment is necessary before an outbound transfer can take place, which include:
1) Cases where the transfer concerns “important data”, which is broadly defined as data that could endanger national security, economic operation, social stability, public health and safety;
2) Cases the transfer concerns personal data by a critical information infrastructure operator or processor of personal information that processed data for 1 million or more individuals;
3) Cases of transfers concerning personal data by a personal information processor that has made outbound transfers of personal information of 100,000 individuals or sensitive personal information of 10,000 persons in the preceding year;
4) Any other situation where the CAC deems a security assessment necessary.
Art. 8 of the Measures covers the factors the CAC considers when undertaking a security assessment, including:
- The risks that the transfer may entail for national security or public interests, among other policy objectives;
- Legitimacy, necessity and method of transfer;
- Whether the level of data protection in the recipient country meets the requirements of laws in China;
- Sensitivity of the data and risks of being tampered with abroad;
- Agreed safeguard measures between the data processor and data recipient;
- Any other matter that the CAC deems necessary.
In case of unfavourable outcomes, the data handler can ask the CAC for a re-assessment and a final decision. In case of a positive decision, the permission to transfer data abroad is valid for two years, but if substantial changes in the risk factors arise, a new assessment might be needed.
Art. 4 of the Outbound Data Transfer Security Assessment Measures, promulgated by the CAC, outlines four situations where a security assessment is necessary before an outbound transfer can take place, which include:
1) Cases where the transfer concerns “important data”, which is broadly defined as data that could endanger national security, economic operation, social stability, public health and safety;
2) Cases the transfer concerns personal data by a critical information infrastructure operator or processor of personal information that processed data for 1 million or more individuals;
3) Cases of transfers concerning personal data by a personal information processor that has made outbound transfers of personal information of 100,000 individuals or sensitive personal information of 10,000 persons in the preceding year;
4) Any other situation where the CAC deems a security assessment necessary.
Art. 8 of the Measures covers the factors the CAC considers when undertaking a security assessment, including:
- The risks that the transfer may entail for national security or public interests, among other policy objectives;
- Legitimacy, necessity and method of transfer;
- Whether the level of data protection in the recipient country meets the requirements of laws in China;
- Sensitivity of the data and risks of being tampered with abroad;
- Agreed safeguard measures between the data processor and data recipient;
- Any other matter that the CAC deems necessary.
In case of unfavourable outcomes, the data handler can ask the CAC for a re-assessment and a final decision. In case of a positive decision, the permission to transfer data abroad is valid for two years, but if substantial changes in the risk factors arise, a new assessment might be needed.
Coverage Key information infrastructure operators
Sources
- https://web.archive.org/web/20220407134758/https://www.dataguidance.com/sites/default/files/en_cybersecurity_law_of_the_peoples_republic_of_china_1.pdf
- https://web.archive.org/web/20231129131106/https://www.gov.cn/xinwen/2016-11/07/content_5129723.htm
- https://web.archive.org/web/20231031122625/http://www.cac.gov.cn/2022-07/07/c_1658811536396503.htm
- https://www.dataguidance.com/comparisons/data-transfers
- https://web.archive.org/web/20231117020458/https://www.oecd-ilibrary.org/docserver/179f718a-en.pdf?expires=1700187598&id=id&accname=guest&checksum=B514C9D17A410748E01DC1E832F0C83B
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CHINA
Since June 2021, entry into force in September 2021
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Data Security Law of the People’s Republic of China (中华人民共和国数据安全法)
Art. 31 of the Data Security Law provides that the security administration of the cross-border transfer of important data collected and generated by critical information infrastructure operators during their operation in China shall be subject to the provisions of the Cybersecurity Law of the People's Republic of China; the administrative measures for the cross-border transfer of important data collected and generated by other data processors during their operation in China shall be formulated by the national cyberspace administration authority in collabouration with relevant departments of the State Council. In addition, Art. 36 stipulates that the competent authority of China shall process the request for providing any data from a foreign judicial body and law enforcement body in accordance with relevant laws and the international treaty or agreement which China has concluded or acceded to, or under the principle of equality and mutual benefit. Any organization or individual within the territory of China shall not provide any foreign judicial body or law enforcement body with any data stored within the territory of the People's Republic of China without the approval of the competent authority of China.
Coverage Horizontal
Sources
- https://web.archive.org/web/20231205204532/https://www.gov.cn/xinwen/2021-06/11/content_5616919.htm
- https://web.archive.org/web/20231212133950/https://digichina.stanford.edu/work/translation-data-security-law-of-the-peoples-republic-of-china/
- https://web.archive.org/web/20240414062320/https://www.lexology.com/library/detail.aspx?g=70ecc077-0b68-4f67-834d-58005716c9c4
- https://web.archive.org/web/20241202145408/https://www.oecd-ilibrary.org/docserver/179f718a-en.pdf?expires=1733152121&id=id&accname=guest&checksum=22F74D818E506CC25978C57894F76298
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CHINA
Since August 2016
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Provisional Measures for Administration of Business Activities of Internet Lending Information Intermediaries (网络借贷信息中介机构业务活动管理暂行办法)
According to Art. 27 of the Provisional Measures for Administration of Business Activities of Internet Lending Information Intermediaries, the lender and borrower information collected within China shall be stored, processed, and analysed in China. Unless otherwise provided by laws and regulations, online lending information intermediaries shall not provide information on domestic lenders and borrowers overseas.
Coverage Online lending information intermediaries
CHINA
Since January 2013
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Regulation on the Administration of Credit Investigation Industry (征信业管理条例)
According to Art. 24 of the Regulation on the Administration of Credit Investigation Industry, credit reporting agencies must organise, preserve, and process consumer or commercial data within China.
Coverage Credit reporting agencies
Sources
- https://web.archive.org/web/20230312014445/http://www.gov.cn/zwgk/2013-01/29/content_2322231.htm
- https://web.archive.org/web/20231028144242/https://itif.org/publications/2021/07/19/how-barriers-cross-border-data-flows-are-spreading-globally-what-they-cost/
- https://www.dataguidance.com/notes/china-data-transfers
- https://web.archive.org/web/20241009022229/http://www.pbc.gov.cn/english/130733/3858830/index.html
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CHINA
Since May 2019, entry into force in July 2019
Since June 2023, entry into force in July 2023
Since June 2023, entry into force in July 2023
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
P.R.C Regulation on the Management of Human Genetic Resources (中华人民共和国人类遗传资源管理条例)
Implementation Rules for the Regulations on the Management of Human Genetic Resources (人类遗传资源管理条例实施细则)
Implementation Rules for the Regulations on the Management of Human Genetic Resources (人类遗传资源管理条例实施细则)
According to the Regulation on the Management of Human Genetic Resources, the export of human genetic resources information from China is prohibited unless explicitly approved in accordance with this Regulation. Under Arts. 7, 8, 9, and 10, the provision of human genetic resources to foreign entities must comply with ethical principles, undergo corresponding ethical reviews, and meet the technical standards established by the scientific administrative departments of the State Council. Such actions must not compromise public health, national security, or public interests. The sale of human genetic resources is strictly forbidden. Foreign organisations and individuals, as well as entities directly controlled by them, are prohibited from transferring China’s human genetic resources abroad.
Art. 28 stipulates that, in addition to a record filing, any provision of data to foreign parties or the permission for its use by foreign parties requires submission of a copy of the relevant data to the Office of Human Genetic Resource Administration within the Ministry of Science and Technology. A “security assessment” may also be required if the provision or use of such data could potentially affect China's public health, national security, or public interest. Art. 37 of the Implementation Rules details the categories of human genetic resources information that must undergo a national security review before being transferred or made accessible to foreign parties. Particular attention must be given to the export of genetic resources information, including that related to significant genetic families or populations from specific geographic regions, or exome sequencing and genome sequencing data involving more than 500 human subjects.
Art. 28 stipulates that, in addition to a record filing, any provision of data to foreign parties or the permission for its use by foreign parties requires submission of a copy of the relevant data to the Office of Human Genetic Resource Administration within the Ministry of Science and Technology. A “security assessment” may also be required if the provision or use of such data could potentially affect China's public health, national security, or public interest. Art. 37 of the Implementation Rules details the categories of human genetic resources information that must undergo a national security review before being transferred or made accessible to foreign parties. Particular attention must be given to the export of genetic resources information, including that related to significant genetic families or populations from specific geographic regions, or exome sequencing and genome sequencing data involving more than 500 human subjects.
Coverage Horizontal
Sources
- https://web.archive.org/web/20230315001241/https://www.gov.cn/zhengce/content/2019-06/10/content_5398829.htm
- https://web.archive.org/web/20231003231012/https://www.chinalawtranslate.com/en/p-r-c-regulation-on-the-management-of-human-genetic-resources/
- https://web.archive.org/web/20230827000427/https://www.most.gov.cn/xxgk/xinxifenlei/fdzdgknr/fgzc/bmgz/202306/t20230601_186416.html
- https://web.archive.org/web/20240506151618/https://www.chinalawtranslate.com/en/Implementation-Rules-for-the-Regulations-on-the-Management-of-Human-Genetic-Resources/
- https://www.dataguidance.com/notes/china-data-transfers
- https://www.lexology.com/library/detail.aspx?g=5a4e9c9a-789a-4a6c-9daa-96bd74d0dc84
- https://web.archive.org/web/20240525172404/https://www.cov.com/-/media/files/corporate/publications/2019/06/key_takeaways_from_chinas_regulation_on_the_administration_of_human_genetic_resources.pdf
- https://web.archive.org/web/20240309222447/http://english.www.gov.cn/policies/latest_releases/2019/06/10/content_281476708945462.htm
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CHINA
Since April 2010, entry into force in October 2010
Since September 1988, entry into force in May 1989, until 2010
Since September 1988, entry into force in May 1989, until 2010
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Law of the People's Republic of China on Guarding State Secrets - Order of the President of the People's Republic of China No. 28 (中华人民共和国保守国家秘密法 - 中华人民共和国主席令. 第二十八 号)
Law of the People's Republic of China on Guarding State Secrets - Order of the President of the People's Republic of China No. 6 (中华人民共和国保守国家秘密法 - 中华人民共和国主席令 第六号)
Law of the People's Republic of China on Guarding State Secrets - Order of the President of the People's Republic of China No. 6 (中华人民共和国保守国家秘密法 - 中华人民共和国主席令 第六号)
Art. 25 of the Law on Guarding State Secrets prohibits the export of carriers containing state secrets. According to Art. 17, such carriers include paper, optical, and electromagnetic media that bear state secrets. This law revises legislation of the same name from 1988, in which Art. 26 prohibited the cross-border transfer of any data containing state secrets.
Coverage Horizontal
Sources
- https://web.archive.org/web/20231208103925/https://www.gov.cn/flfg/2010-04/30/content_1596420.htm
- https://web.archive.org/web/20230322131955/http://www.lawinfochina.com/display.aspx?lib=law&id=1191
- https://www.dataguidance.com/advisories/data-transfers
- https://web.archive.org/web/20231028144242/https://itif.org/publications/2021/07/19/how-barriers-cross-border-data-flows-are-spreading-globally-what-they-cost/
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CHINA
Since August 2021, entry into force in October 2021
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Provisions on Management of Automotive Data Security (Trial) (汽车数据安全管理若干规定(试行))
According to Arts. 11 and 12 of the Provisions on Management of Automotive Data Security (Trial), important data must be stored domestically in compliance with legal requirements. If cross-border data transfer is necessary, security assessments must be conducted in coordination with the Cyberspace Administration of China and other relevant governmental authorities. Furthermore, the Management Provisions stipulate that vehicle data processors who provide important data to foreign entities must adhere strictly to the purpose, scope, method, type, and scale of data as specified in the security assessment. Data categorized as important includes video and image data captured outside of vehicles that contain facial information and personal information pertaining to 100,000 or more identified or identifiable vehicle owners, drivers, passengers, and individuals outside the vehicles.
Coverage Automotive sector
Sources
CHINA
Since July 2016, entry into force in November 2016, last amended in November 2022
Pillar Cross-border data policies |
Indicator Infrastructure requirement
Interim Measures for the Administration of Online Taxi Booking Business Operations and Services (网络预约出租汽车经营服务管理暂行办法)
Art. 5 of the Interim Measures mandates that online taxi reservation platforms must maintain their servers within the territorial boundaries of China.
Coverage Online taxi reservation platforms
Sources
- https://web.archive.org/web/20230515080417/https://www.gov.cn/zhengce/2022-12/06/content_5730384.htm
- http://lawinfochina.com/display.aspx?id=32714&lib=law&EncodingName=big5
- https://web.archive.org/web/20241202143618/https://uk.practicallaw.thomsonreuters.com/6-631-7405?transitionType=Default&contextData=(sc.Default)&firstPage=true
- https://web.archive.org/web/20241202143045/https://digitalpolicyalert.org/event/12163-adopted-interim-measures-for-administration-of-online-taxi-booking-business-operations-including-data-localisation...
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