(By You Yunting) Abstract: By the “Management Measures of Internet Information Services” (the “Measures”) issued by the State Council, China will carry out a new system of filing and recording to those non-operating Internet information services, namely those services involving the open sharing of information. These websites falling within the measures shall undertake the recording and filing procedures laid out before publishing any and all information. Yet, the situation seems to have undergone some changes with the promulgation of the working draft of the “Management Regulations of Network Publishing Services” (the “Regulations”), wherein most information released onto the network would be deemed so-called “network publishing.” As provided in the Regulations, no matter whether the service is operating or non-operating, the requirements for a Network Publishing Service License (the “License”) shall apply. It can be easily seen that such regulations are being made that are essentially beyond any lawful authorization, and are in fact contrary to rules previously issued by the State Council.
In my post of “Publishing Regulations from GAPP: Make Most Chinese Websites Illegal in Their Operation” last month, the exposure draft of the Regulation from GAPP (the “General Administration of Press and Publication”) was criticized. By its definition, most information released on the network would be included within the definition of “online publishing,” which according to the Regulations shall require approval for a License by GAPP prior to any publishing.
In addition, the License application is relatively burdensome to most websites when considering the regulatory demands set by the GAPP. Among these, it includes: the legal representative or the main charge shall be a qualified publisher of an intermediate or higher rank; also, 8 or more full-time editors qualified in publishing or other relevant qualifications, among which those possessing at least intermediate qualification shall not be less than 3; an operating system of revision and proofreading; more than RMB 100 million registered capital and a fixed, regular working locale. These demands seem to sever any possibility of most websites gaining or even having hopes of gaining the License.
Following the theme of analyzing the nonsensical aspects of the Regulation in the last article, today I’m going to discuss the contradiction between the Regulation and the current rules of the State Council. Pursuant to the Law of Legislation, State Council departments like GAPP shall make regulations to enforce the laws or within the scope set in the regulations, decisions or orders released by the State Council. However, the Regulation has obviously written its articles such that they exceed the scope of the rules set in Publication Management Regulations or the Measures, which are both the “upper legislation” of the Regulation, and also the content of the Regulation has extended its powers beyond the scope of authorization from the State Council.
As provided in Article 2 of the Publication Management Regulations:
“The publication mentioned in this regulation shall refer to the publishing, printing or copy, import or releasing of the publication. The publication in the regulation refers to newspapers, journals, books, audio and video products, and electronic publications.”
Therefore, Internet publishing is not included in the Regulations. Moreover, the only article involving Internet activity can be found in Article 36:
“Those units or individual businesses engaging in publishing activities through the Internet and other networks shall first acquire a Publication Operation License in accordance with the regulation.”
This article is apparently focusing on the sales of publications by individual entities, and does not bring Internet publishing, digital works and network publishing services that could be seen in the Regulation into its regulating scope. The GAPP has made a wildly expansive interpretation of Article 36 of the Publishing Management Regulations, violating the purpose of the original articles, and moreover we have seen that the authorities have accepted this interpretation as legitimate legal grounds in upholding the Regulations.
In the Measures of the State Council, we can also find authorized regulation to the GAPP, and two important principles are provided in Article 2 of those regulations: 1) the State carries out the system of recording and filing non-operating Internet information services, which appear to be open and involve free sharing of information, and those websites shall be required to undertake the recording and filing procedures prior to publishing said information; 2) for operating Internet information services, such as those containing paid information services or those which engage in webpage making, the State implements a licensing system. In addition, as provided in Article 5, for those entities engaging in the publication of news, publishing in general, education services, medical care, medicine and medical equipment and other Internet information services, a prior approval by the administration is required, and said entity shall provide its application to the relevant administrative organ for the issuing of a business license or to undertake the requisite recording and filing procedures. Therefore, Article 2 and 5 of the Measures are the true legal basis of the GAPP Regulations.
But when one takes a close look at GAPP’s Regulations, it becomes clear that it has violated the requirements as provided in the State Council’s Regulation, which clearly states that no distinction shall be made between operating and non-operating services, and it has taken all information published on the Internet within the scope of “online publishing” as provided in the Regulations, which require approval by GAPP for a license. With such an arrangement, the original recording and filing of non-operating information published on the Internet has become an administrative licensing issue, and what’s worse, it is coupled with an unreasonably high threshold for admittance. Thus, it has violated documents previously released by the State Council.
When this type of departmental regulation comes into force, there can only be two types of consequences that will occur as a result. One could be, 1) when enforced strictly, most existing websites will be shut down, and the people will be muzzled, their voices silenced; 2) when enforced less strictly, no serious change would be made to activity conducted on the Internet, but where would one look to find true authority as handed down by the law makers? In my humble opinion, the later consequence is more likely to be seen, because the GAPP has no power to force all existing websites to follow their unfair regulations, for once they are compulsorily implemented, a fierce reaction will be waiting. Confucius once said: “going too far is as bad as not going far enough.” Therefore, we look forward to when the relevant departments take into consideration that the best administration is usually coupled with less management.