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Article China: Supreme People's Court Interprets Criminal Liabilities of Online Service Providers

(Dec. 10, 2019) On October 21, 2019, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP, the prosecutor) of the People’s Republic of China (PRC or China) released the Interpretation on the Application of Law in Handling Criminal Cases of Illegal Use of Information Networks and Assisting Information Network Criminal Activities. The Interpretation clarifies issues relevant to several cybercrimes that were added to the PRC Criminal Law by a 2015 amendment to the Law, including the crime of online service providers refusing to perform cybersecurity management obligations. The Interpretation took effect on November 1, 2019. (Interpretation art. 19.)

Article 286a of the Criminal Law

According to article 286a of the PRC Criminal Law—a sub-article added by the 2015 amendment—network service providers in China and their responsible persons may face criminal penalties for failing to perform cybersecurity management obligations prescribed by laws or regulations if they refuse to rectify the wrongdoing as ordered by the relevant regulatory department and if any of the following results or other serious circumstances occur: (1) dissemination of a large amount of illegal content; (2) leakage of users’ personal information resulting in grave consequences; (3) loss of evidence for criminal cases where the circumstances are serious. The criminal penalties include up to three years’ imprisonment and a fine. (Criminal Law art. 286a.)

Definition of Network Service Providers

The Criminal Law does not define the scope of network service providers. According to the Interpretation, network service providers under article 286a of the Criminal Law refer to entities and individuals that provide any of the following services:

(1) Network access, domain name registration analysis, and other information network access, computing, storage, or transmission services;

(2) Information network application services such as information release, search engine, instant messaging, online payment, online booking, online shopping, online gaming, online streaming, website construction, security protection, advertising and promotion, app store, etc.;

(3) E-government, communication, energy, transportation, water conservancy, finance, education, health care, and other public services provided by using information networks. (Interpretation art. 1, English translation provided by Westlaw China, by subscription.)

Thresholds for Serious Circumstances

The Interpretation specifies the thresholds for those serious circumstances prescribed by article 286a. According to the Interpretation, any of the following may constitute “dissemination of a large amount of illegal content”: (1) 200 or more illegal video files or 2,000 or more pieces of other illegal information are disseminated; (2) any illegal information is disseminated to 2,000 or more user accounts; (3) any illegal information is disseminated in a chat group with a total of 3,000 or more member accounts or a social media account with a total of 30,000 or more followers; or (4) any illegal information is clicked 50,000 or more times. (Art. 3.)

For leaking users’ personal information, “grave consequences” include any of the following: (1) 500 or more pieces of tracking information, communication content, credit information, or property information are leaked; (2) 5,000 or more pieces of residential information, communication records, health and physical information, transaction information, or other user information that may affect personal or property safety are leaked; (3) 50,000 or more pieces of other user information are leaked; or (4) death, serious injury, mental disorder, abduction, etc. of another party is caused. (Art. 4.)

Other Serious Circumstances

The Interpretation specifies several circumstances that fall under the category of “other serious circumstances” of article 286a. For example, it is a serious circumstance if a network service provider fails to authenticate the majority of its users’ identities. (Art. 6.) According to article 24 of the PRC Cybersecurity Law, which entered into effect on June 1, 2017, service providers must ask users to register their real identity information. They are prohibited from providing services to any users who do not perform the identity authentication steps.

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Chicago citation style:

Zhang, Laney. China: Supreme People's Court Interprets Criminal Liabilities of Online Service Providers. 2019. Web Page. https://www.loc.gov/item/global-legal-monitor/2019-12-10/china-supreme-peoples-court-interprets-criminal-liabilities-of-online-service-providers/.

APA citation style:

Zhang, L. (2019) China: Supreme People's Court Interprets Criminal Liabilities of Online Service Providers. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2019-12-10/china-supreme-peoples-court-interprets-criminal-liabilities-of-online-service-providers/.

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Zhang, Laney. China: Supreme People's Court Interprets Criminal Liabilities of Online Service Providers. 2019. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2019-12-10/china-supreme-peoples-court-interprets-criminal-liabilities-of-online-service-providers/>.