Outbound Personal Information Transfer Is Better Regulated – A Brief Analysis of Regulations on Standard Contract for Cross-Border Transfer of Personal Information (Exposure) and Security Certification Procedures for Cross-Border Handling Activities of Personal Information

(By Wang Hongliang) Many businesses are perplexed by the practical problem about outbound personal information transfer compliance, especially for foreign-inveested businesses that need to provide personal information abroad in many scenarios, for example when they have to provide personal information to their headquarters or affiliates.

Article 38[1] of the Personal Information Protection Law provides that in addition to other premises, security assessment, personal information protection certification and standard contract are approaches to outbound personal information transfer compliance. According to Article 4[2] of the Measures for Data Outbound Transfer Security Assessment (Exposure), the security assessment mainly applies to the situations when personal information is collected or generated by critical information infrastructure operators, personal information handlers processing personal information of one million people or more transfer personal information abroad or personal information of over 100 thousand people or sensitive personal information of over 10 thousand people is cumulatively transferred abroad.

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By Adding Safe Harbor in Anti-Monopoly Law, Do Small and Medium Sized Businesses Regain the Right to Set Resale Prices?

(By You YuntingCan brand holders cap wholesale and retail prices of their products? Many people believe brand holders have the discretion to set prices. However, the Anti-Monopoly Law 2007 imposes such strict restrictions that almost ban this practice, causing controversies. The safe harbor clauses added to the new Anti-Monopoly Law adopted by the Standing Committee of the National Congress conditionally allows small and medium sized businesses with small market shares to cap resale prices. Now let’s look at where the safe harbor comes from.

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China Laws and Regulations Update in May 2022

1. Provisions (II) on the Standards for Filing Criminal Cases under the Jurisdiction of the Public Security Organs for Investigation and Prosecution (Amended)

Promulgated by Supreme People’s Procuratorate and Ministry of Public Security

Promulgation date: 29 April 2022

Implementation date: 15 May 2022

The standards for filing criminal cases for investigation and prosecution of 21 kinds of cases are improved according to amended laws and legal interpretations. The standards for filing criminal cases for investigation and prosecution of 9 kinds of securities and futures crimes are changed according to Criminal Law Amendment (XI) and the amendments to Securities Law in order to fight crimes relating to securities issuance fraud, breach of disclosure rules, concealment of important information, etc. and protect investors’ legitimate rights and interests. In addition, the standards for filing criminal cases for investigation and prosecution of 12 kinds of crimes, including false registered capital crimes are modified according to the amendments to Criminal Law, Company Law and other laws and legal interpretations.

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China Laws and Regulations Update in April 2022

1. Interpretation of Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People’s Republic of China by the Supreme People’s Court

Promulgated by Supreme People’s Court

Promulgation date: 17 March 2022

Implementation date: 20 March 2022

Document number: L.I.[2022] 9

The Interpretation consists of 29 articles mainly to further clarify Article 2 of the Anti-Unfair Competition Law, counterfeits and confusion, false publicity, unfair competition on the internet, etc. under the amended Anti-Unfair Competition Law.

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Is Andy Liu Responsible for Audi’s Plagiarism in its Advert?

(By You YuntingThe other day Audi made an allegedly plagiarized advert at Grain Buds, one of the traditional Chinese solar terms, attracting public interest. I felt bad about this incident because the advert in dispute was shot with my favorite star Andy Liu. Today I would like to discuss whether Andy Liu is also responsible for the infringement if “Mr. Grain Buds from Peking University” takes an action.

First, let’s look at the case facts. May 21st is Grain Buds, one of the traditional Chinese solar terms. On that day Audi published the advert Live a Life Like Grain Buds endorsed by Andy Liu on several platforms, including douyin and weibo, which soon gained much popularity on the internet. “Mr. Grain Buds from Peking University”, a douyin blogger showed proof in a video that Audi made the advert by plagiarizing his writings. Audi apologized in public and removed the advert completely from the internet and Andy Liu also removed the advert video from his douyin account.

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China Laws and Regulations Update in March 2022

1. Interpretation of Several Issues Connected with Application of General Principles of Civil Code

Promulgated by Supreme People’s Court

Promulgation date: 25 February 2022

Implementation date: 1 March 2022

Document number: L.I.[2022] 6

The Legal Interpretation of the general principles part mainly addresses three issues. First, the transition between Civil Code and old laws. After Civil Code was taken into action, the Provisions of Civil Law, the General Principles of Civil Law, the Contract Law, etc. are abolished with relevant legal interpretations such as the Instructions on the Provisions of Civil Law, the Legal Interpretation I of Contract Law, the Legal Interpretation II of Contract Law being abolished by the Supreme People’s Court. Many clauses in these legal interpretations are consistent with Civil Code and helpful for the work of judicial authorities and need to be retained and integrated to avoid law application problems during the transition, adversely affecting the implementation of Civil Code. Second, a collection of experiences and insights in legal practices acquired by courts over a long period of time. Civil Code was made by codification with many clauses sourced from its counterparts. Chinese courts have abundant experience in the application of these clauses to civil cases. These clauses need to be incorporated into it to ensure all cases are decided fairly. Third, in response to law application issues that call for clarification after the Provisions of Civil Law was taken into action. The majority of the General Principles of Civil Code come from the General Principles of Civil Law, which was in force for over four years, in which Chinese courts accumulated rich practical experience and put forward some law application issues to be addressed.

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Key Points that Performers Should Know When Protecting Themselves from Internet Portrait Right Infringement

(By Lv Xuanxuan and Sun Yinuo) Back in September 2020, Beijing Internet Court published “Rules on Hearing and Deciding Internet Portrait Right Cases” (“Rules”) stating that unauthorized use of a person’s portrait in an advertorial should be deemed as infringement; unauthorized use of a recognizable portrait should be deemed as infringement; the popularity of the person in the portrait is important to calculate the amount of damages; false endorsement will result in more liabilities; and legal and reasonable use of portraits should not be deemed as infringement. According to statistics, the number of portrait right infringement cases, mostly connected with portraits of well-known public figures, especially celebrities in areas of entertainment, ranked immediately below the number of internet copyright infringement cases. Infringement of portrait right of “performers” in areas of entertainment is common. This article gives performers some advice on how to protect their rights in internet portrait right infringement cases to help them claim rights in an appropriate way and seek reasonable and effective remedies.

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China Laws and Regulations Update in February 2022

1. Cyber Security Inspection Rules

Promulgated by Cyberspace Administration, etc.

Promulgation date: 4 January 2022

Implementation date: 15 February 2022

Rules adds activities of online platform operators processing data that affect or might affect national security, etc. to circumstances where cyber security inspection shall be conducted, clearly stating that online platform operators with over one million users’ personal information must apply for cyber security inspection to the cyber security inspection office before going listed abroad. For the purpose of the inspection, CSRC is added to members of the work mechanism for cyber security inspection and national security risk evaluation criteria, etc. are improved. Accordingly, three possible results of the cyber security inspection application are no inspection required, no effect on national security and approval for going listed abroad after the inspection and adverse effect on national security and refusal to grant approval for going listed abroad.

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Factors that Businesses Should Consider When Formulating Service Invention Bonus and Reward Policies

(By Gao Shaoyi and Li Rong) The Patent Law, the Detailed Rules for the Implementation of the Patent Law and other relevant laws are all guidelines as to how to reward and pay the rewards for patents. In Patent Law, businesses are not only entitled but also obligated to pay rewards for patents. Considering these legal provisions, many businesses have made agreements with relevant right holders or formulated patent reward policies according to their industry and regional conditions. Businesses need to follow the principle of “acting upon agreement or in case of no agreement, law” and reasonably formulate their own patent reward policies by reference to statutory standards. In this article we would like to deal with general, key and practical issues connected with service invention reward cases in recent years we searched.

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The Impact of the Hague Agreement on the Layout of Chinese Enterprise Design Patents

(By Ye Sushuo) On February 5, 2022, World Intellectual Property Organization announced that China has joined the Hague System for the International Registration of Industrial Designs. China became the 68th contracting party to the Geneva Act of the Hague Agreement (1999) and the 77th member of the Hague Union. The number of design applications in China has ranked first in the world in recent years. In 2017, the number of design patent applications accepted in China was 629,000, in 2018 it was 709,000, in 2019 it was 712,000, and in 2020 it was 771,000, showing an upward trend year by year. The new “Patent Law” that has come into effect has also pushed China’s design protection to a higher level. Under the Hague Agreement, enterprises should also pay more attention to the layout of design patents.

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China Laws and Regulations Update in January 2022

1. Civil Proceeding Law (Amended)

Promulgated by the Standing Committee of the National Congress

Promulgation date: 15 December 2021

Implementation date: 1 January 2022

Publication No. 106 President Order

The main amendments to the Civil Proceeding Law involve legal confirmation, small action and simplified procedures, sole adjudicator rules and online actions.

First, improvements to the legal confirmation procedures. In the amendment the application scope of the legal confirmation procedures are appropriately broadened to cover agreements reached through legally founded mediation organizations and allow intermediate people’s courts to deal with legal confirmation applications within their competent jurisdictions.

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Why “Gu Ailing” Trademarks Are Declared as Invalid?

(By Wang Haichuan) With Beijing Winter Olympic Games going on well, some people are planning to take advantage of successful athletes to gain enormous profits. On 14 February 2022 China National Intellectual Property Administration made the Announcement of Legally Fighting Malicious Rush Registration of Bing Dundun, Gu Ailing, Etc. Trademarks, arousing wide concerns. According to the announcement, a few businesses and individuals maliciously applied hot words related to the Winter Olympics such as the mascot for 2022 Beijing Winter Olympic and Paralympic Games and athletes’ names, illegally used reputation of the Olympics and the Olympic Committee and infringed others’ names and legal rights in order to gain illegal profits and therefore China National Intellectual Property Administration refused to approve 429 trademark registration applications, including No.41128524 “Bin Dundun” and No.62453532 “Gu Ailing” trademark applications and used its powers to announce the invalidity of 43 registered trademarks, including No.41126916 “Xue Dundun” and No.38770198 “Gu Ailing” trademarks. This article deals with reasons for and issues related to NIPA’s announcement of the invalidity of “Gu Ailing” trademark.

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China Laws and Regulations Update in December 2021

1. Cyber Data Security Regulations (Exposure Version)

Promulgated by Cyberspace Administration of China

Promulgation date: 15 November 2021

The Exposure Version provides that there should be a data classification and protection system in China, in which data are classified into general, important and core data according to how they affect and how important they are to national security, public interests or individual or organization’s legal rights. Protection measures for data in different classes may differ. In China, enhanced protection is given for personal and important data and strict protection for core data.

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China Laws and Regulations Update in November 2021

1. Family Education Promotion Law

Promulgated by Standing Committee of National People’s Congress

Document number: No.98 Chinese President Order

Promulgation date: 23 October 2021

Implementation date: 1 January 2022

This law consists of 52 articles and six chapters of general principles, family education administration, promotion and intervention, legal responsibility and additional provisions. The main contents of the law are:

Chapter I “general principles”. This chapter sets out legislative purpose, the meaning, fundamental tasks, legal relationship and fundamental principles in connection with family education.

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China Laws and Regulations Update in October 2021

1. Notice on Rectifying Virtual Currency “Mining”

Promulgated by eleven departments including NDRC

Promulgation date: 24 September 2021

Document number: FGYX 2021 No.1283

Based on the general principles of “close monitoring, strict risk control, no increase in current amounts and appropriate handling of current projects”, the Notice requires strengthened regulation of the complete industry chain in upper and lower streams of virtual currency “mining”, no new virtual currency mining projects, quicker orderly withdrawal from current projects, improvement of the industry structure and help to achieve the aims to halt the rise of and neutralize carbon emissions. The Notice gives three tasks including comprehensive review and examination of virtual currency mining projects and strict bans on investing and developing new projects, which are divided into specific measures to review and examine current projects and strengthen dual energy consumption control of new virtual currency mining projects. The Notice clearly put virtual currency mining on the list of eliminated industries and strictly bans doing virtual currency mining in the name of a data center.

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