The Exposure Draft of Management Measures of Internet Information Service of China

On 7th June, the exposure draft of Management Measures of Internet Information Service was publicized by the State Internet Information Office and Ministry of Industry and Informationization for public opinions. This regulation is a major legal document to the management in China internet and Bridge IP Law Commentary has translated the draft.

Chapter 1 The General Principle

Article 1 These Procedures have been formulated in order to promote the healthy and orderly development of internet information services, protect the national security and social interests, protect the public and internet ISP benefits, and to regulate internet information service activities.

Article 2 Anyone that engages in internet information service activities in the People’s Republic of China must abide by these Procedures.

For the purposes of these Procedures, the term “internet information services” means the service activity of providing information services through the internet.

Article 3 The authority of national internet content administration is responsible for the management of information on internet, coordination between the telecommunication department, public security department and other departments’ supervision and management over the internet information.

The state telecommunication department is responsible for the management over the internet industry by its legal duty, and is in charge of the supervision and management on market admission, market order, internet source and internet information security.

The public security department is responsible for the supervision over the internet security by the legal duty, and is in charge of maintaining the public order and security, and prevent and punish the crime on the internet.

Other departments of the State Council is in charge of the management over internet information service on the internet within the scope of its legal duty.

The local management duty on the internet information service shall be regulated by the state laws.

Article 4 The state encourages in the information communication by the ISP beneficial to the improvement of the nation quality and economic development.

Article 5 The state encourages the self discipline in the industry by the ISP and the public supervision over the internet information service.

Chapter 2 The Establishment

Article 6 Internet information services are divided into commercial and non-commercial services.

For those who intent to operate the commercial service, a license issued by the telecommunication department for the value added telecommunication business is demanded; for those who intent to operate the non-commercial business, a record in the telecommunication department is demanded.

No one may engage in the provision of internet information services without having obtained permission or carried out record-filing procedures.

Article 7 For those engaging in the service of internet information, they shall have no punishment record of revocation of value-added telecommunication business license by the authority or the cancellation of the record.

The following materials shall be submitted to the telecommunication department when applying for the value-added telecommunication business operation or fulfilling the record procedure:

1. The real ID document, address, contact information and other basic information of the sponsor or relevant staffs;

2. The condition of the website name, website address, server location and connection service intended to use;

3. The license document for the service to be provided and from the administration;

Those engaging in the internet information service shall be qualified with management system and technical guarantee measures for the internet security and information security management which is complying with the legal regulation,

Article 8 In addition to meeting the requirements of the Article 7 of this regulation, the following conditions shall be met in order to engage in the provision of commercial internet information services:

1. The operator is the legal entity set up by law;

2. The adequate fund, place, equipment and professionals for the internet information service;

3. The ability demonstrable to a long term service;

4. A business development plan and a relevant technical plan.

Article 9 Anyone wishing to engage in the provision of commercial internet information services shall make the application to the telecommunications administration authority, who shall complete the consideration on the approval or the refusal within 69 days after the application.

Article 10 A license from the administrative department is demanded for the operation with the following service is involved when operating the internet information service:

1. The engagement of the news information service, providing the service of information communication by the internet ser and the search service of the internet shall be approved by the authority;

2. Where, according to laws, administrative regulations or relevant State regulations, engagement in the provision of internet information services in respect of news, publishing, education, medical treatment, health, pharmaceuticals or medical apparatus, etc. requires the consent of the relevant competent authority and make the record in the authority of the state internet information management.

For the service provided in the item 1 in the last paragraph, the license condition, procedure, term and material demanded will be publicized by the authority of state internet information management.

Chapter 3 Operation

Article 11 The provider of internet access service shall verify the qualification of the ISP, and shall not provide the service to the unqualified ISP.

The internet information service provider shall verify the qualification which is demanded by laws and regulations for the internet business.

Article 12 Internet information service providers shall post their Operating Permit numbers or record-filing numbers when providing the service.

The procedure of modification shall be made to the licensing or recording authority when there are any changes on the license or record of the internet information service provider.

Article 13 The internet information provider shall not infringe other internet information provider and user’s interests.

Article 14 The internet information service providers and access provider shall set up management system and security prevention measures on the internet security and information security, public information check, disposal for urgencies, user information security.

Article 15 The internet information service provider for information publication by the users, shall demand the registration by the users with the true ID information.

The internet access service provider shall record the true ID information, website name and website address of the internet information service provider.

Article 16 The internet information service provider shall record the information publicized by it or its service object with 6 months.

The internet information service provider and access provider shall record the diary of 12 months and provide technology support for the consultancy by the public security and national security department.

Article 17 The internet information service provider and access provider shall keep secret of the personal information of the users, diary information and other personal information, and shall not sell, modify, disclose with purpose or illegally use.

Article 18 The internet information service providers may not produce, reproduce, disseminate or broadcast information or provide the service to the production, copy, publication and communication with content that:

1. opposes the fund amental principles determined in the Constitution;

2. compromises State security, divulges State secrets, subverts State power or damages national unity;

3. harms the dignity or interests of the State;

4. incites ethnic hatred or racial discrimination or damages inter-ethnic unity;

5. sabotages State religious policy or propagates heretical teachings or feudal superstitions;

6. disseminates rumours, disturbs social order or disrupts social stability;

7. propagates obscenity, pornography, gambling, violence, murder or fear or incites the commission of crimes, or transact, manufacture illegal or prohibited articles, or regulated articles;

8. insults or slanders a third party or infringes upon the lawful rights and interests of a third party, or make use of the name of other national authorities, social unions or legal entities; or

9. includes other content prohibited by laws or administrative regulations.

Article 19 When the internet information service provider and access provider know the information publicized or transmitted is of those listed in Article 18 of this regulation, it shall immediately stop the publication and transmission thereof, save the relevant records and make a report thereon to the relevant authority and the public security department.

The state departments may take measures to disconnect the information listed in Article 18 of this regulation.

Chapter 4 Supervision and examination

Article 20 The administration authority of internet information and telecommunication and other departments shall make open to the public the condition of the internet information service license, record, and the public may check the license and record.

Article 21 When the administration authority of internet information and telecommunication, the public security department and other departments’ staffs fulfilling the obligation of supervision & check, law enforcement, the internet information service provider and access provider shall cooperate and shall not refuse or prevent.

Article 22 The administration authority of internet information and telecommunication, the public security department and other departments’ staffs shall fulfill the obligation of supervision & check, law enforcement, and at least two officers shall participate in the specific law enforcement and show their certificate.

Article 23 The administration authority of internet information and telecommunication, the public security department and other departments’ staffs shall record the supervision, law enforcement conditions and results, which shall be filed after signed by the enforcing officers and is available to public check.

Article 24 The administration authority of internet information and telecommunication, the public security department and other departments shall set up information sharing and reporting system.

Article 25 The administration authority of internet information and telecommunication, the public security department and other departments shall set up public complaint system and publicize the contact method to the social public.

Any units or individuals may make the report to the relevant departments when detecting any conducts violating this regulation by the internet information provider and access provider.

The administration authority of internet information and telecommunication, the public security department and other departments shall record and handle all the reports; or transfer the report to other departments with authority when the issues are not of their duty.

Chapter 5 Legal liability

Article 26 When the administration authority of internet information and telecommunication, the public security department and other departments’ staffs neglect their duties, abuse their duties or commit illegalities for personal gains, a punishment for the liable staffs or the staffs in charge.

Article 27 When engaging in the provision of the internet information services without having obtained an the license for value added telecommunication business or record in the administration, the telecommunication authority shall order the internet access service provider cease the service access; and it shall confiscate such illegal income and impose a fine of not less than 3 times and not more than 5 times the illegal income.

Article 28 When engaging in the provision of the internet information services regulated in Article 10 of this regulation, without having obtained an the license for value added telecommunication business or record in the administration, the internet information authority shall order the cease of the internet service; it shall confiscate such illegal income and impose a fine of not less than 3 times and not more than 5 times the illegal income; and it shall revoke the license for value added telecommunication business or cancel the record by the telecommunication administrative authority when the conditions are serious.

Article 29 When the internet information service provider fails to fulfill the obligation in Article 11 of this regulation, the administration authority of internet information and telecommunication and the public security department may warn, order the correction within a legal period; it shall confiscate such illegal income and impose a fine of not less than 3 times and not more than 5 times the illegal income; when no correction has been finished within the period, it may order the internet information service pause or stop till the revocation of its business license of value added telecommunication business or cancellation of the record by the telecommunication administrative authority.

Article 30 When the internet information service provider fails to comply to the obligations in this regulation, and conduct the following issues, the licensing, recording administration may warn, order correction within a limited period; and revoke the license of value added telecommunication business or cancel the record when the situations are serious:

1. Failing to provide the material demanded or handle the record procedure;

2. Failing to provide the number of license or record explicitly when providing the internet information service or giving a false number;

3. Failing to handle the modification procedure.

Article 31 When the internet information provider violates Article 13 of the law, the telecommunication administrative authority may warn and make a confiscation of more than 100 thousand and less than 1 million yuan; it may order the internet information service pause or stop till the revocation of its business license of value added telecommunication business or cancellation of the record by the telecommunication administrative authority when the conditions are serious.

Article 32 When the internet information service provider fails to fulfill the obligation in Article 14, 15 and 16, the administration authority of internet information and telecommunication and the public security department may warn, order the correction within a legal period; when no correction has been finished within the period, it may order the internet information service pause or stop till the revocation of its business license of value added telecommunication business or cancellation of the record by the telecommunication administrative authority.

Article 33 When the internet access service provider fails to fulfill the obligation in Article 11, 14 and 15, the administration authority of internet information and telecommunication and the public security department may warn, order the correction within a legal period, and confiscate a fine of more than 100 thousand but less than 1 million yuan; or revoke its business license of value added telecommunication business or cancel the record by the telecommunication administrative authority when the conditions are serious.

When the internet access service provider fails to fulfill the obligation in Article 16 and 19, the administration authority of internet information and telecommunication and the public security department may warn, order the correction within a legal period, and confiscate a fine of more than 100 thousand but less than 1 million yuan; or revoke its business license of value added telecommunication business or cancel the record by the telecommunication administrative authority when the conditions are serious.

When the internet access service provider fails to fulfill the obligation in Article 18, providing the service of manufacturing, copy, publication and communication illegal information, the administration authority of telecommunication and the public security department may warn, order the correction within a legal period, and impose a fine of not less than 3 times and not more than 5 times the illegal income or revoke its business license of value added telecommunication business or cancel the record by the telecommunication administrative authority when the conditions are serious.

Article 34 When the internet information service provider or access service provider fails to fulfill the obligation in Article 17, the administration authority telecommunication and the public security department may warn, order the correction within a legal period, and confiscate the illegal gains; when such gains are more than 50 thousand yuan, it shall impose a fine of not less than 3 times and not more than 5 times the illegal income; when such gains are less than 50 thousand yuan or no such gains, it shall impose a fine of not less than 100 thousand yuan and not more than 150 thousand yuan; it may revoke its business license of value added telecommunication business or cancel the record by the telecommunication administrative authority when the conditions are serious.

Article 35 When the internet information service provider or access service provider fails to fulfill the obligation in Article 18 and 19, the administration authority telecommunication and the public security department may order the stop of the illegal activity; and when there are illegal gains, it shall impose a fine of not less than 3 times and not more than 5 times the illegal income; and revoke the license of value-added telecommunication business license or cancel the record by the telecommunication administrative authority. And other units or individuals shall also be punished by law.

Article 36 When violating this regulation and is revoked the business license for value-added telecommunication business or canceled the record, the telecommunication administrative department will notice the internet access service provider and domain name resolution service provider stop the service. When the service items in Article 10 of this regulation is involved, the telecommunication administrative department shall notice the related department and revoke the license.

Article 37 When the violation against this regulation could constitute the crime, a criminal liability shall be chased.

Chapter 6 Other regulations

Article 38 The service of information publication by internet users in this regulation shall refer to the service of information publication condition provision, involving BBS, blog or microblog, etc.

Article 39 Any operation of business of information publication by internet users or internet information search service before this regulation, shall handle the procedures hereby provided, among which the regulatory conditions shall be met within 6 months and once it could not meet such regulations, the business shall be revoked by the internet information administrative authority.

Article 40 These regulation shall be implemented as of the date of , and the Management Measures on Internet Information Service promulgated by the State Council on 25^th September 2000 shall be abolished at the same time.

We will compare the draft with the currunt measures tomorrow, to be continued…

Lawyer Contacts

You Yunting

86-21-52134918

youyunting@debund.com, yytbest@gmail.com

For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.

Bridge IP Law Commentary’s posts, including the comments and opinions contained herein, shall not be construed as the legal advice on any issues related. The contents are for general information purposes only. Anyone willing to quote or refer the posts to any other publications or for any other purposes, no matter there’s benefits gained or not, shall first get the written consent from Bridge IP Law Commentary and used under the discretion of us. As to the application of the reprint permission for any of our posts, please email us to the above addresses. The publication of this post or transmission of it through mail, internet or other methods does not constitute an attorney-client relationship. The views set forth here are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works.

Short Link: