Discussion of New Uses of the “Safe Harbour Principle” Based on Recent Cases

Article Fourteen of the Rules on Protection of the Right to Disseminate Information on the Internet provides that “a person may send a written notice requiring providers of storage space, searches, links and other internet services relating to a work, performance or audio or video product that the person believes infringes their right to disseminate information on the internet or causes their electronic information about management of their rights to be removed or changed remove or invalidate links to the work, performance or audio or video product”. Articles 22 and 23 of the Rules further provide that storage space, search, link and other internet services providers who have performed the removal obligations under the notice from the information owner do not need to pay compensation.

This is known as the “safe harbour principle” or “notice-removal” process. Limitations on use of this principle often vary with developments in different internet environment and industries. I’d like to discuss new uses of this “principle” based on several recent cases.

1.Which platforms are exempt from the “notice-removal” process?

First of all, let’s look at the first case involving wechat mini-apps[1] decided by the Hangzhou Internet Court. We won’t discuss responsibilities of infringing parties here. The disputed issue was that the court found the legal status of the “mini-app” was the same as that of an “auto-connect service” and “auto-transmission service” (“basic transmission service”). Article Twelve of the Rules states that “basic transmission service providers” that do not change any “transmitted data”, etc. are excluded from people performing this obligation, whether they go through the “notice-removal” process. The decision amounted to an “immunity” that prevented Tencent from punishment, with which Tencent had no need to be afraid of any potential infringement of other person’s rights and could completely ignore any notice from right owners without doing anything about the infringement.

In my opinion, however, the decision made by the Hangzhou Internet Court needs further consideration. The “auto-connect service” and “auto-transmission service” providers mentioned in Article 20 of the Rules only refer to people providing the “underlying” transmission technology such as “Telecom”, “Unicom” and other broadband connection providers, “IDC computer rooms”, “domain name resolution service providers”, etc. From the aspect of technical features, these services are very weakly related to “infringement” and based on even more basic transmission technology. From the aspect of user experience, “basic transmission service providers” are less accessible to users.

The role that Tencent plays in the “mini-app” business is quite different from what we usually think about “basic service providers”. The relationship between “mini-apps” and Tencent is like the relationship between Apple and “APPSTORE” or Alibaba and “Taobao or TMall”. Tencent is creator and manager of the mini-app platform that directly provides internet services to consumers. Contents of the platform are accessible to its users and directly affect its operation and Tencent’s profits or commercial benefits from it. Therefore, in the mini-app scenario, Tencent should not be found as “basic service provider” similar to internet service providers such as Telecom or Unicom. The court of the second trial will make a different decision.

2.Can platforms be exempt from the rule by only performing the obligation of “removal”?

According to the Rules on Protection of the Right to Disseminate information on the Internet, a “valid notice” should contain “(a) the right holder’s name, contact information and address, (b) a statement requiring removal or invalidation of links to names and websites of the infringing works, performances and audio and video products; and (c) preliminary proof of the infringement. Valid “removal” means removing or invalidating links to the infringing works, performances and audio and video products immediately after receipt of the above notice.

I think that the above “notice-removal” process is more and more unsuitable for the current internet industry. With the advancement of the mobile internet, information is passed and shared “more quickly and briefly” and is more “time-sensitive” than ever before, for example, in the short video industry. In this circumstance the “notice-removal” process is useless for right holders as they could only claim their rights after the infringement occurs. Right holders often feel frustrated if (a) the platform delays removal on the ground of failing to receive a valid notice from right holders (for example, for lack of a link) and performs such removal when the information is no longer popular and such removal becomes unimportant; or (b) the platform “assists in the right holder very actively”, performs the removal upon notice and continue to post infringing contents on the platform from time to time.

In a recent case that I handled, in which the right owner sent to the platform several notices of the account number of infringing videos requiring the platform take appropriate action to stop posting more infringing videos through the account, and the platform removed infringing videos immediately upon notice without doing anything about the account, the court admiringly decided that the platform should be responsible for the infringement when another infringing video was posted through the account, instead of relieving the platform’s responsibility by following the “notice-removal” process.

In this case, the right holder seemed not to have sent any “notice” of infringing contents, but the court held that the notices previously given could be deemed as a warning of potential infringement on the platform, in which case “removal” alone could not relieve the platform of its responsibility. In case of several “notices” given, the “red flag principle” applies, not the “safe harbour principle”. The court finally decided that the platform “should be aware” of the infringement at that time and must take further action (for example, closing the account) to avoid it. I agree with the court’s decision because it is more adaptable to the current trends of the internet industry and helpful to prevent platforms from abusing the “safe harbour principle”. This case is pending a second trial. We expect the court of the second trial to affirm the opinions of the court of the first trial.

3.Should “alluring platforms” be required to perform stricter “duty of reasonable care”

“Alluring platforms” are not a legal term and known as “neural platforms” which attract users uploading their own short videos by establishing a benefit sharing mechanism (for example, sharing advertising fees received) without checking the legality of videos uploaded.

As stated above, with rapid growth of the short video industry, large platforms are trying to establish their own short video platforms. Nevertheless, there are few good short videos in their industry. In this background “alluring platforms” emerge. These platforms attract users uploading their short videos by using the “safe harbour principle” to reduce their legal risks and letting a large number of infringing short videos uploaded by users exist on the platforms. In one of the recent cases I handled the court treated these platforms leniently and protected them under the “safe harbour principle” [(2018) S. 73 C.F.No.361][2]

The “alluring platforms” actually contain “things uploaded by users” and have established a “benefit sharing mechanism” to attract users uploading videos. Obviously, they intend to receive more advertising fees, gather more videos and gain more market shares. It is questionable whether these platforms can legally exist as “neural platforms” like “information storage space service providers”. In addition to imposing stricter “duty of investigation” on them, I even think of rejecting their legal status of “service providers” and classifying them as “content providers” based on their intention, status and sharing mechanism. The infringement responsibility for infringing contents will be discussed in future cases.

Legal authorities change the “safe harbour principle” from time to time with changes in the industry. My opinions contained in this article are only based on the cases I recently handled.

[1] An abstract of the judgement:


[2] An abstract of the judgement: https://www.qichacha.com/wenshuDetail_com_6e10d4584a4914fb78847e2190a29f32.html


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