ISP Liability for Infringing Content: Blogger Beware
Chinese ISPs are often criticized for removing content from their sites that anyone suggests may be defamatory or violate some other party's intellectual property rights. This criticism is not really justified because Chinese law essentialy requires ISPs to take this action or be jointly liable for the offense. Article 36 in the Draft Tort Law succinctly states the current rule on ISP liability:
第三十六条. 网络服务提供者知道网络用户利用其网络服务侵害他人民事权益，未采取必要措施的，与该网络用户承担连带责任。网络用户利用网络服务实施侵权行为的，被侵权人有权通知网络服务提供者采取删除、屏蔽、断开链接等必要措施。网络服务提供者接到通知后未及时采取必要措施的，对损害的扩大部分与该网络用户承担连带责任。Article Number 36: If an ISP knows its user has used the ISP's network to infringe on the civil rights of another person and does not take appropriate action, then the ISP shall have joint liability together with the user. In a case where a internet user makes use of the network to engage in infringing activity, the infringed party has the right to give notice to the ISP to take necessary measures such as deletion, blocking or termination of service. After receiving such notice, if the ISP does not take act immediately to take such remedial action, then the ISP shall have joint liability with the the user for all increase in damage.
This rule is almost exactly the opposite of the rule that applies in the United States. Under the Chinese rule, once an ISP receives a complaint, it is obligated to act immediately to take remedial action. If the ISP fails to act, the ISP is jointly liable for any damage. Though there may be no damage there is little to no benefit to the ISP to take the risk of leaving the potentially offending material online. Therefore, prudent ISPs operating in China typically immediately remove any item any person has claimed to be infringing. This very same rule applies to websites and blogs.
Foreign companies and individuals that engage in internet activity in China should be aware of this rule. You are not operating under protections of online speech similar to the United States. For example, under Chinese law, a blog owner is considered to responsible for all comments appearing in the blog and is therefore subject to this rule. If the blog is visible inside China, its publication is deemed to be in China and the above rule applies.
Comments (2)
Read through and enter the discussion by using the form at the endTwofish - November 12, 2009 6:10 AM
The problem is that if you are a foreign company that *does* comply with Chinese law, then you need to prepare yourself for some major public relations disasters in the United States. Yahoo stepped on this landmine with the Shi Tao case, and it's been a major factor that has limited Google's entry in the Chinese market place.
One other curious thing is that Chinese law is very strict on political censorship, but it is very lax as far as intellectual property enforcement. One reason that Google is getting beat in China is that they can't link to mp3, whereas all of the Chinese portals can.
There are ways of getting around this. For example you can sell content to Chinese media companies, and have them do all of the censorship. But it does require a lot of thought. But this is part of overall business planning. Yahoo's debacle with the Shi Tao is a symptom of generally poor planning and business strategy on the part of Yahoo since they should have seen this coming a mile away.
I suppose the landscape is different for different companies. If you are a high profile multi-national corporation, you are going to run into a huge legal and public relations minefield. If you want to run a site on tractor repair, then it's not a big deal to censor political content since you are going to do it anyway.
Also Chinese media companies that want to do business overseas have to deal with these issues too. I'm just imagining the massive prot*st, letter writing campaign, and public whipping that a Chinese media company is going to get when and if something happens to a d1ss1dent.
chriswaugh_bj - November 12, 2009 4:56 PM
Twofish: "One reason that Google is getting beat in China is that they can't link to mp3, whereas all of the Chinese portals can."
google.cn 音乐. The selection of music available doesn't seem any greater than Baidu MP3, but I do find it simpler to use. Google is trying to catch up.
What irritates me about Yahoo/Shi Tao and similar "scandals" is the refusal by so many to understand that your sense of ethics or morality simply does not change the fact that if you are in China you are subject to Chinese law.