China Tightens Control Over Online Content
China has begun enforcing its new media content regulations. This article looks at how they are being enforced and targets of recent enforcement actions.
China is considered to have the most extensive and advanced Internet control in the world due to the government’s efforts to block certain website content and monitor the Internet access of individuals, earning its strict protective measures the nickname ‘The Great Firewall of China’. Recently, in order to further improve and advance China’s control over the use of the Internet and its related content, the Ministry of Industry and Information Technology and the State Administration of Press, Publication, Radio, Film and Television have jointly released rules in relation to online publishing, the Regulation for the Management of Online Publishing Services (the ‘Rules’), effective as of March 10, 2016. These rules have had a wide and immediate effect, with massive corporations including Apple Inc. and Walt Disney Company being removed from the Chinese consumer market, further explored below.
Regulation of online content in China
China currently has some of the world’s most restrictive policies on the dissemination of information, including through the Internet. For example, censors apply to Chinese television, news media content and popular social media platforms such as WeChat; and companies including Google, Facebook, YouTube, and Twitter are blocked. As the world grows closer, China seeks to protect itself from the power and influences of foreigners and outside stimuli, especially Western culture and ideas. Therefore, the joint release of the Rules seeks to regulate and restrict the dissemination of a wide range of content online by foreign companies or foreign joint ventures.
Under Article 3 of the Rules, online publishing shall ‘abide by the Constitution and relevant laws and regulations, adhere to the direction of serving the people and socialism, adhere to the progressive direction of socialist advanced culture, carry forward the core socialist values, disseminate and accumulate all ideological, moral, scientific, technological and cultural knowledge that is beneficial to raising the quality of the nation, promoting economic development, stimulating social progress, and satisfying the popular masses’ daily increasing spiritual cultural needs’. Therefore, the Rules seek to ensure China’s national identify remains protected.
In accordance with Article 2 of the Rules, the scope of the term online publications includes the following:
1. text, pictures, maps, games, animation, audio video reading materials and other original digital works having knowledge and ideological content in literature, art, science, and other fields;
2. digital works with content that are consistent with those of already published books, newspapers, periodicals, audio, electronic publications and so on;
3. network literature databases and others formed by selection, arrangement, and collection of the abovementioned works, and by any other method; and
4. any other category of digital work identified by the State Administration of Press, Publication, Radio, Film and Television.
Under Article 46 of the Rules, the authorities seek to encourage online publications which focus on publishing:
1. materials having a major function in setting forth and disseminating the basic principles established by the Constitution;
2. materials having a major significance in carrying forward socialist core values, educating on patriotism, collectivism, socialism and national unity, as well as promoting social morality, professional ethics, family virtues and personal qualities;
3. materials having a major function in carrying forward the excellent national culture and promoting international cultural exchanges;
4. materials having independent intellectual property rights and excellent cultural content;
5. materials making major contributions to promoting a culture of innovation, and timely reflections on domestic and foreign new scientific and cultural achievements;
6. materials having a major function in promoting public cultural services;
7. materials devoted to minors, with healthy content or other content conducive to the healthy growth of minors; and
8. others having major ideological value, scientific value or cultural artistic value.
The Rules specifically target foreign companies and foreign joint ventures under Article 10 of the Rules, which states that Sino-foreign cooperative ventures, Sino-foreign joint ventures and foreign business units shall not engage in online publishing services, as well as stating that any domestic network publishing activity with sino-foreign cooperative ventures, Sino-foreign joint ventures, foreign enterprises or foreign organisations and individuals shall be reported for approval with the State Administration of Press, Publication, Radio, Film and Television. Therefore, the Rules explicitly target a foreign presence in the Chinese Internet territory, which may consequentially shut China further from the on-goings and developments taking place throughout the world, as well as shut foreign companies from one of the largest and fastest-growing markets in the world.
Also, the Chinese government seeks to promote the use and storage of data on local servers within China, as opposed to hosting data on servers located outside the country, which currently many foreign business entities employ. In accordance with Article 8 (3) of the Rules, publishing units containing content such as books, audiovisuals, electronics, newspapers and periodicals engaged in online publishing must meet the condition of having the necessary technological equipment for online publishing services, and related servers and storage devices to be stored in the territory of the People’s Republic of China. This is in line with the government’s initiative since 2015 in the drafting of a Chinese anti-terrorism law to keep data stored on servers in the Chinese mainland. Therefore, China seeks to be promoting the storage of content on Chinese servers to encourage faster connection speeds as well as a mechanism to not only bring in further content for it to control, but to also regulate more easily the content being published online.
However, the movements of foreign media or influences attempting to operate in China have always been highly restricted, in one form or another, therefore the Rules does not present an entirely new phenomenon. Instead, the Rules, rather than enforcing an absolute block against foreign media and content, seek to impose greater scrutiny and pressure on the relevant entities. Also, having all the relevant rules and limits outlined in one new regulation allows the relevant authorities to cite the source of their legal authority, as well as assisting necessary parties on their rights and obligations in one easy format.
Otherwise, the provisions within the Rules are extremely broad and vague, which enables the relevant authorities and regulators the ability to exercise a greater jurisdiction. Therefore, how the law is implemented and enforced is important, as there can be a wide variation in what the legislation says and how it is practiced in reality. For example, under Article 24 of the Rules, online publications shall not contain:
1. material against the basic principles established by the Constitution;
2. material harming the national unity, sovereignty and territorial integrity of China;
3. material leaking state secrets, endangering state security, or harming national honour and interests;
4. material seeking to incite ethnic hatred or ethnic discrimination, and undermining national unity or ethnic customs and habits;
5. material propagating evil cults or superstition;
6. material spreading rumors, disturbing social order or destroying social stability;
7. material promoting obscenity, pornography, gambling, violence, or instigating crimes,
8. material insulting or slandering others, or infringing upon the legitimate rights of others;
9. material jeopardising social ethics or excellent national cultural traditions; or
10. other material prohibited by laws, administrative regulations and other state rules.
Also, Article 25 prohibits online publications that contain content inducing minors to imitate the violation of social morality and criminal acts, relating to terror, cruelty and other which may impair physical and mental health of minors, or content disclosing personal privacy of minors; and Article 30 provides that online publications must comply with relevant national regulations and standards to ensure the quality of publications. However, Articles 24, 25 and 30all fail to contain any definition for any of the terms included therein, including terms like ‘national cultural traditions’ or ‘social morality’, therefore allowing a wide or narrow interpretation to the discretion of enforcement or any other relevant authorities.
The Rules give a glimpse into one of the enforcement’s control mechanisms to regulate the publishing on online content. Under Article 26 of the Rules, it provides that publishing units covering major topics including national security and social stability should file their content prior to publishing with the State Administration of Press, Publication, Radio, Film and Television, and Article 27 of the Rules provides that online games must submit their application for approval to the same authority before being able to publish online. Furthermore, under Article 28, if the content of online publications result in the harming of legitimate interests of citizens, legal persons or organisations, the relevant publishing entity shall be ordered to cease infringing, to declare publicly a statement of correction to eliminate any adverse effects of the publication, and to bear any civil liability in accordance with relevant laws. Finally, under Article 50, if publishing entities are found in violation of the Rules, the relevant authorities may make the following administrative measures:
1. a notice of warning;
2. notify the entity of the offending content, and an order to make corrections;
3. an order of an open act of self-criticism in relation to the offending content; or
4. an order to remove the illegal content.
Therefore, despite the vagueness and ambiguity pursuant to the content of the above articles mentioned above, the enforcement measures employed are varied and many, in order to facilitate the Chinese government’s interest in regulating strict control over online publications in China. Therefore, there is much room for punishment or enforcement against offending content, which remains undefined to allow the adoption of wide interpretations and prevent a limit on the authorities’ power to issue administrative measures. Although such efforts may be necessary to regulate and even commended in relation to the prevention of publishing harmful or malicious content online, an imbalance such as this one may not only result in protectionism, but also harm the attempts of start-ups and their innovations, therefore overall hurting China’s growing economy.
Apple Inc. case
In an extraordinary move, Apple Inc., a multinational technology company headquartered in California specializing in the designing and developing of consumer electronics, computer software, and online services; and Walt Disney Company, a multinational involved in mass media and entertainment, has been ordered to retreat from the Chinese consumer market. Specifically, the Apple’s iTunes store, which launched in September 2015, was closed down in mid-April; while the Disney’s Disney Life Service, which was launched by partners Disney and Alibaba Group’s Ali Digital Entertainment, was closed down in March by the State Administration of Press, Publication, Radio, Film and Television.
While the old regulations, the Temporary Regulation on the Management of Online Publishing, allowed licensed foreign joint ventures on mainland China to publish original and adapted creative works online, the new Rules are much stricter in its control and regulation over online content in China. The reasons for the closing down of Apple and Disney were not entirely clear due to the authorities’ wide discretion to interpret the Rules as narrowly or widely as possible in relation to online content, therefore it may have been the content in one or several of Apple’s many games and Disney’s many movies. Although Apple has been operating in China for a number of years and has proven its capabilities in relation to handling takedown notices from the government of any unacceptable content, this time there was no such luck. As a result, Apple’s shares fell 29 cents to a close of $105.68 in late April, a decrease of 3.8% from the previous week. Therefore, the Chinese market has become increasingly difficult and hostile for foreign companies, proving that even the corporate giants of the world are not immune to China’s powerful regulators.
However, both Apple and Disney remain hopeful they will be able to make their products available again to their faithful customers in China in the near future.
While China can be commended for its efforts in protecting its nation from malicious or disruptive content through the dissemination of information online, it is increasingly approaching a massive imbalance where it has asserted full control over an alternate Internet world cut off from any foreign influence. Therefore, its attempt to restrict and control the online content in such a way may consequentially cause China to close more of itself against the world, which may one day endanger the slowing economy of China.
ABOUT THE AUTHOR: Xia Yu and Joyce Chng
Xia Yu and Joyce Chng are with the MMLC Group.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.