CHINA
Since February 2002
Pillar Telecom infrastructure & competition |
Indicator Signature of the WTO Telecom Reference Paper
WTO Telecom Reference Paper
China has appended the World Trade Organization (WTO) Telecom Reference Paper to its schedule of commitments.
Coverage Telecommunications sector
CHINA
Since February 2016
Pillar Cross-border data policies |
Indicator Infrastructure requirement
Online Publishing Service Management Rules (网络出版服务管理规定)
Arts. 8 and 9 of the Online Publishing Service Management Rules mandate that the servers and storage equipment of online publishers must be situated within the borders of China.
Coverage Online publishers
Sources
- https://web.archive.org/web/20230419080201/http://www.gov.cn/zhengce/2022-11/09/content_5724634.htm
- https://web.archive.org/web/20231128184822/https://digichina.stanford.edu/work/online-publishing-service-management-rules/
- https://web.archive.org/web/20210410200350/https://www.lexology.com/library/detail.aspx?g=ae42b04f-2289-44ac-8b07-1f3ec03bc1aa
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CHINA
N/A
Pillar Telecom infrastructure & competition |
Indicator Presence of an independent telecom authority
Lack of independent telecom authority
The Ministry of Industry and Information Technology (MIIT) acts as the telecommunications authority in the country, and therefore, there is no independence from the government in its decision-making process.
Coverage Telecommunications sector
CHINA
Since August 2021, entry into force in November 2021
Pillar Cross-border data policies |
Indicator Conditional flow regime
Personal Information Protection Law (个人信息保护法)
Art. 40 of the Personal Information Protection Law provides that critical information infrastructure operators and personal information processors handling personal information must store personal information collected and produced within the borders of China. Where such information needs to be provided abroad, they shall pass a security assessment organised by the National Cyberspace Department. Also, according to Art. 38, the processors of personal information must apply one of the conditions to provide information outside of the PRC: passing the security assessment organised by the National Cyberspace Department; obtaining personal information protection certification from the relevant specialised institution according to the provisions issued by the national cyberspace department; concluding a contract stipulating both parties' rights and obligations with the overseas recipient following the standard contract formulated by the national cyberspace department; and meeting other conditions set forth by laws and administrative regulations and by the national cyberspace department.
Where a processor of personal information provides personal information outside the People's Republic of China, it is required to inform the individual of the name or names of the overseas recipient, the contact information, the purpose of processing, the manner of processing, the type of personal information, as well as the manner and procedure for the individual to exercise his or her rights under this Law with the overseas recipient, and obtain the individual's consent (Art. 39). Personal information processors shall not provide personal information stored in the People's Republic of China to foreign judicial or law enforcement agencies without the approval of the competent authorities of the People's Republic of China (Art. 41).
Where a processor of personal information provides personal information outside the People's Republic of China, it is required to inform the individual of the name or names of the overseas recipient, the contact information, the purpose of processing, the manner of processing, the type of personal information, as well as the manner and procedure for the individual to exercise his or her rights under this Law with the overseas recipient, and obtain the individual's consent (Art. 39). Personal information processors shall not provide personal information stored in the People's Republic of China to foreign judicial or law enforcement agencies without the approval of the competent authorities of the People's Republic of China (Art. 41).
Coverage Horizontal
CHINA
Since January 2011, entry into force in May 2011
Since February 2020
Since February 2020
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Yinfa No. 17/2011, Notice of the People's Bank of China on Protecting Personal Financial Information by Banking Financial Institutions (人民银行关于银行业金融机构做好个人金融信息保护工作的通知)
Personal Financial Information Protection Technical Specification (个人金融信息保护技术规范)
Personal Financial Information Protection Technical Specification (个人金融信息保护技术规范)
The "Notice of the People's Bank of China on Protecting Personal Financial Information by Banking Financial Institutions" states that the processing of personal information collected by commercial banks must be stored, handled and analysed within the territory of China, and such personal information is not allowed to be transferred overseas (paragraph 6).
The Personal Financial Information Protection Technical Specification (PFI Specification) regulates “any personal information collected, processed and stored by Financial Institutions during the provision of financial products and services" (PFI). The PFI specification requires that PFI collected or generated in mainland China is stored, processed and analysed within the territory. Further, under the PFI Specification, where there is a business need for cross-border transfer of personal financial information (PFI) and the financial institution obtains explicit consent to the transfer from the personal financial information subjects (i.e. the persons under the PFI Specification providing the data), conducts a security assessment and then supervises the offshore recipient to ensure responsible processing, storage and deletion of PFI (Section 7.1.3).
The Personal Financial Information Protection Technical Specification (PFI Specification) regulates “any personal information collected, processed and stored by Financial Institutions during the provision of financial products and services" (PFI). The PFI specification requires that PFI collected or generated in mainland China is stored, processed and analysed within the territory. Further, under the PFI Specification, where there is a business need for cross-border transfer of personal financial information (PFI) and the financial institution obtains explicit consent to the transfer from the personal financial information subjects (i.e. the persons under the PFI Specification providing the data), conducts a security assessment and then supervises the offshore recipient to ensure responsible processing, storage and deletion of PFI (Section 7.1.3).
Coverage Financial sector
Sources
- https://web.archive.org/web/20241009025357/http://www.pbc.gov.cn/english/130733/3911512/index.html
- https://web.archive.org/web/20220224002514/http://www.gov.cn/gongbao/content/2011/content_1918924.htm
- https://www.shengjingbank.com.cn/upload/Attach/mrbj/2830664356.pdf
- https://web.archive.org/web/20220526214829/https://www.globaltradealert.org/state-act/7735/china-notice-on-financial-institutions-protection-over-personal-financial-information
- https://web.archive.org/web/20220303131123/https://e.linklaters.com/67/921/downloads/20200304-pboc-publishes-new-data-protection-guidelines-for-financial-institutions.pdf
- https://web.archive.org/web/20160508041800/http://uk.practicallaw.com/4-519-9017
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CHINA
Since November 2012, entry into force in February 2013
Pillar Cross-border data policies |
Indicator Conditional flow regime
Guidelines for Personal Information Protection Within Public and Commercial Services Information Systems (公共及商用服务信息系统个人信息保护指南)
Art. 5.4.5. of the Guidelines for Personal Information Protection Within Public and Commercial Services Information Systems prohibit the transfer of personal data abroad without the express consent of the data subject, government permission or explicit regulatory approval "absent express consent of the subject of the personal information, or explicit legal or regulatory permission, or absent the consent of the competent authorities". If these conditions are not fulfilled, "the administrator of personal information shall not transfer the personal information to any overseas receiver of personal information, including any individuals located overseas or any organisations and institutions registered overseas." Although the Guidelines are a voluntary technical document, they might serve as a regulatory basis for judicial authorities and lawmakers.
Coverage Public and Commercial Services Information Systems
Sources
- https://web.archive.org/web/20231227001129/https://digichina.stanford.edu/work/information-security-technology-guidelines-for-personal-information-protection-on-public-and-commercial-service-informati...
- https://web.archive.org/web/20240712200613/https://www.dlapiperdataprotection.com/system/modules/za.co.heliosdesign.dla.lotw.data_protection/functions/handbook.pdf?country-1=CN
- https://web.archive.org/web/20231128172929/http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2280037
- https://web.archive.org/web/20200727022639/http://law.emory.edu/elj/content/volume-64/issue-3/articles/data-nationalism.html
- https://web.archive.org/web/20211025231401/http://www.insideprivacy.com/international/china/china-releases-national-standard-for-personal-information-collected-over-information-systems-industr/
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CHINA
Since May 2014
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Administrative Measures for Population Health Information (For Trial Implementation) (人口健康信息的管理措施(试行))
Population health information needs to be stored and processed within China. In addition, storage is not allowed overseas (Art. 10).
Coverage Health sector
Sources
- https://web.archive.org/web/20220122174909/https://www.cov.com/~/media/files/corporate/publications/2014/07/new_chinese_requirements_on_management_of_health_information.pdf
- https://web.archive.org/web/20220121023514/https://www.ft.com/content/e11024f4-e281-11e4-aa1d-00144feab7de
- https://web.archive.org/web/20160508041800/http://uk.practicallaw.com/4-519-9017
- https://web.archive.org/web/20230126220918/http://www.cac.gov.cn/2014-08/20/c_1112064075.htm
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CHINA
Since July 2016, entry into force November 2016, last amended in November 2022
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing 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)
China instituted a licensing system for online taxi companies, which requires that personal information and business data should be stored and used in mainland China and must not be transferred outside of China (Art. 27 of the Interim Measures for the Administration of Online Taxi Booking Business Operations and Services). Such information should be retained for two years, except when otherwise required by other laws and regulations. The Measurement also states that taxi companies' servers should be set up in Mainland China, with a network security management system and technical measures for security protection in compliance with regulations (Art. 5.2).
Coverage Online taxi sector
Sources
- https://web.archive.org/web/20221206231444/https://www.ft.com/content/d08338b6-6fde-11e5-ad6d-f4ed76f0900a
- https://web.archive.org/web/20200103063359/https://www.cnbc.com/2016/07/28/uber-didi-hail-chinas-new-taxi-app-rules.html
- https://web.archive.org/web/20220120180804/https://thelawreviews.co.uk/title/the-privacy-data-protection-and-cybersecurity-law-review/china
- https://web.archive.org/web/20220211121149/http://www.gov.cn/xinwen/2016-07/28/content_5095584.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 March 2007, entry into force in June 2007
Pillar Intellectual Property Rights (IPRs) |
Indicator Adoption of the WIPO Copyright Treaty
WIPO Copyright Treaty
China has ratified the World Intellectual Property Organization (WIPO) Copyright Treaty.
Coverage Horizontal
CHINA
Since March 2007, entry into force in June 2007
Pillar Intellectual Property Rights (IPRs) |
Indicator Adoption of the WIPO Performances and Phonograms Treaty
WIPO Performances and Phonograms Treaty
China has ratified the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty.
Coverage Horizontal
CHINA
Since July 2015
Pillar Intellectual Property Rights (IPRs) |
Indicator Mandatory disclosure of business trade secrets such as algorithms or source code
National Security Law of the People's Republic of China (中华人民国国家安全法)
According to Art. 25 of the Chinese government’s 2015 National Security Law, all information systems in China must be "secure and controllable". As a result of this policy, it is reported that every company operating in China – whether domestic or foreign – is required to provide the Chinese government with access to its source code, encryption keys, and backdoor access to their computer networks in China.
Coverage Horizontal
Sources
- https://web.archive.org/web/20240225175901/https://intpolicydigest.org/the-global-implications-of-china-s-national-and-cyber-security-laws/
- https://web.archive.org/web/20230202090346/http://www.xinhuanet.com//politics/2015-07/01/c_1115787097.htm
- https://web.archive.org/web/20220330120525/http://www.gov.cn/zhengce/2015-07/01/content_2893902.htm
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CHINA
Since December 1998
Pillar Intellectual Property Rights (IPRs) |
Indicator Effective protection covering trade secrets
Several Provisions on Prohibition of Infringement of Trade Secrets (关于禁止侵犯商业秘密行为的若干规定)
The Anti-Unfair Competition Law of the People's Republic of China, which was implemented by the Several Provisions on Prohibition of Infringement of Trade Secrets Act, provides a framework for the effective protection of trade secrets. According to Art. 2 of both laws, the term "trade secrets" refers to technical information and business information that is not known to the public, can bring economic benefits to the right holder, is practical, and has been kept confidential by the right holder. Art. 3 of the Several Provisions on Prohibition of Infringement of Trade Secrets Act outlines prohibitions against trade secret infringements, including obtaining trade secrets through improper means such as theft or coercion and disclosing or using such secrets. It also covers violations by business partners and employees who breach confidentiality agreements, as well as third parties who knowingly use or disclose obtained trade secrets. Moreover, Art. 7 states that violations of Art. 3 will be addressed by the administration for industry and commerce according to Art. 25 of the "Anti-Unfair Competition Law," which may involve ordering the cessation of illegal activities and imposing fines ranging from 10,000 to 200,000 yuan (approx. USD 1,500 to USD 30,000).
It is reported that, despite existing regulations, serious deficiencies in the protection and enforcement of trade secrets in China have raised concerns among stakeholders. Numerous cases of trade secret theft benefiting Chinese companies, both domestically and internationally, have been documented. Particularly troubling are reports that agents affiliated with the Chinese government and military have infiltrated the computer systems of foreign companies, stealing terabytes of data, including proprietary information and intellectual property, to provide commercial advantages to Chinese enterprises.
It is reported that, despite existing regulations, serious deficiencies in the protection and enforcement of trade secrets in China have raised concerns among stakeholders. Numerous cases of trade secret theft benefiting Chinese companies, both domestically and internationally, have been documented. Particularly troubling are reports that agents affiliated with the Chinese government and military have infiltrated the computer systems of foreign companies, stealing terabytes of data, including proprietary information and intellectual property, to provide commercial advantages to Chinese enterprises.
Coverage Horizontal
Sources
- https://web.archive.org/web/20241202194126/https://www.beijing.gov.cn/gate/big5/www.beijing.gov.cn/zhengce/zhengcefagui/qtwj/201904/t20190426_776416.html
- https://www.wipo.int/wipolex/en/legislation/details/6551
- https://web.archive.org/web/20231219230708/https://cms.law/en/int/expert-guides/cms-expert-guide-to-trade-secrets/china
- https://web.archive.org/web/20240301074107/https://ustr.gov/sites/default/files/IssueAreas/IP/2022%20Special%20301%20Report.pdf
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CHINA
Since December 2021, entry into force in January 2022
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Indicator Maximum foreign equity share
Special Management Measures for Foreign Investment Access (Negative List) (2021 Edition) (外商投资准入特别管理措施 (负面清单) (2021 年版)
Under the Negative list 2021, foreign investment in radio stations, television stations, radio and television transmission networks, radio and television satellites, satellite uplink stations, satellite receiving stations, microwave stations, internet audio-visual program services, cyberculture operations (except for music) and internet information dissemination services (except for contents opened up in China's WTO commitments) is prohibited. It is also forbidden to engage in the business of video broadcasting by order of radio and TV and the installation services of ground receiving facilities for satellite TV broadcasting.
Coverage Internet information dissemination services
CHINA
N/A
Pillar Telecom infrastructure & competition |
Indicator Passive infrastructure sharing obligation
Requirement of passive infrastructure sharing
It is reported that there is an obligation for passive infrastructure sharing in China to deliver telecom services to end users. Moreover, passive infrastructure sharing is practised in both the mobile and fixed sectors based on commercial agreements.
Coverage Telecommunications sector
