On October 9, 2014, China’s Supreme People’s Court issued a new judicial interpretation regarding online infringement of personal rights. This judicial interpretation is intended to deal with the increasing problem of online defamation and unfair competition activities in China. The wide use of social media, such as microblogs and WeChat, has dramatically increased the risks of, and damages caused by, defamatory statements and illegal disclosures of privacy.
The 19-article judicial interpretation is not a complete privacy law. The Supreme People’s Court came up with the new rules for very practical reasons – providing an operative system for internet platforms and victims of infringement. The personal rights referred to in the judicial interpretation include individual names, reputation, and the rights of honor, portrait and privacy.
The core of the rules is similar to those for online copyright infringement. The Supreme People’s Court adopted the take-down notice rules, which provide some kind of safe harbor for internet platforms. However, if the internet platforms are found to have been aware of the infringement, but still failed to take appropriate measures, this constitutes direct infringement, and joint and several liability applies.
To judge whether an internet platform was aware of infringement by its users, the Supreme People’s Court provided a combination of tests, which are fairly similar to those set forth in the judicial interpretation on online copyright infringement. The factors to be considered include:
1. whether the internet platform processed the infringing information manually or automatically (e.g., ranking, cataloguing and recommendations);
2. whether the internet platform has the technical capability to identify potential infringements, the nature of the technical service provided and the likelihood of inducing infringements;
3. the extent to which the published information infringes personal rights;
4. the social impact of the infringement (how many times the information is viewed by users);
5. the possibility of implementing preventive technology and whether the internet platform has adopted reasonable measures; and
6. whether the internet platform has carried out actions against repeated infringements
On the privacy side, the judicial interpretation clearly stipulates that any online user or internet platform which illegally publishes an individual’s private information (i.e., genetic information, medical records, health check materials, crime records, home address and private activities) shall bear legal liability. Exceptions include consent, public interest, academic research subject to consent/ anonymity, self-disclosure and lawful channels.
As for remedies, the Supreme People’s Court imposed a RMB500,000-cap for statutory damages, if the plaintiff fails to prove the exact amount of loss. This cap is likely to be the result of the lobbying carried out by the Chinese internet platforms. It will be interesting to see if the new judicial interpretation will start a new wave of civil lawsuits.