217 total views, 1 views today
An alternate translation of this document is available at China Copyright and Media Law
《Supreme People's Court Provisions Regarding Several Issues of Application of Law in the Trial of Online Torts and Civil Disputes Cases》
These Provisions are formulated on the basis of the "PRC General Principles of Civil Law", the "PRC Tort Law", the "National People's Congress Standing Committee Decision on Strengthening Protections of Online Information" "the PRC Civil Procedure Law" and other Laws and Regulations, combined with experience from practice, so as to correctly try cases of violations of personal rights and interests and civil disputes that exploit that networks.
Article 1: "Cases of violations of personal rights and interests and civil disputes exploiting information networks." as used in these Provisions refers to cases of disputes arising from the exploitation of information networks to violate other's right to a name, naming rights, reputation rights, image rights, privacy rights or other personal rights and interests.
Article 2: Lawsuits raised on the exploitation of information networks to violate personal rights, are in the jurisdiction of the people's court where the infringing conduct occurred or where the defendant resides.
The site of the violating conduct includes the location of allegedly infringing computers and other terminals, and the location of the consequences of the infringement, including the location of the injured persons.
Article 3: Where the plaintiff raises a suit against a network user or network service provider under articles the second or third clauses of article 26 of the Tort Law, the people's courts should accept it.
Where the plaintiff has only raised a lawsuit against a network user and the network user requests that an internet service provider suspected of violations be added as a joint defendant or third party, the people's courts should allow it.
Where the plaintiff has only raised a suit against a network service provider, and the network service provider requests to add a verifiable user as a joint defendant or third party, the people's court shall allow it.
Article 4: Where plaintiffs sue network service providers, and a network service provider asserts as a defense that the allegedly infringing information was published by a network user, people’s courts may, on the basis of the plaintiff's request and the specific case circumstances, order the network service providers to provide a people’s court with sufficient information to identify the suspected infringer's name, contact methods, network address and other such information.
Where the network service provider refuses to so provide without legitimate reason, the people's court may employ methods such as giving punishments to the network service provider on the basis of article 114 of the Civil Procedure law.
Where the plaintiff, on the basis of information provided by the network service provider requests to add a network user as a defendant, the people's court should allow it.
Article 5: In accordance with the second clause of article 36 of the Tort Law, where the injured party gives notice in writing, or by means publicly announced by the network service provider, and includes the following content, the people's court shall find it effective:
(1) the notice giver's full name (appellation) and contact details;
(2) the network address where it is requested necessary measures be taken, or related information sufficient to correctly locate the infringing information.
(3) The reason that the informer requests deletion of the relevant information.
Where notice sent by the injured party does not meet the requirements above, and the network service providers advocate waiving liability, the people's court shall support it.
Article 6: When a people’s court applies the provisions of the second clause of Article 36 of the Tort Law to determine whether a network service provider's necessary measures, such as deletions, blocking, or breaking links, were prompt, it shall make a comprehensive judgment on the basis of the basis of factors such as the nature of the network service, the form of effective notification and its degree of accuracy, and the type and extent to which the network information infringed on rights and interest.
Article 7: Where network users whose published information is subjected to measures such as deletion, blocking or breaking links, advocate that the network service provider bear liability for breach of contract or torts, and the network service provider defends on the grounds of having received notification, the people's court should support it.
Where a network user subjected to deletions, blocking or breaking links requests the network service provider provide the contents of the notification, the people's courts should support it.
Article 8: Where notice leads a network service provider to wrongly adopt measures such as deletions, blocking or breaking link, and the network user subject to these measures requests that the notice giver bear tort liability, the people's courts shall support it.
Where network users wrongly subjected to measures request that the network service provider adopt related restorative measures, the people's courts should support it except where there are technological limitations and recovery is impossible.
Article 9: People's Courts' making a finding on whether an internet service provider 'knew', shall comprehensively consider the following factors:
(1) Whether, either automatically or manually, the network service provider suggested, listed, selected, edited, organized, revised or otherwise handled the violating network information;
(2) The information management capacity the network service provider should possess ; the nature and means of the services provides; as well as the likelihood of it giving rise to infringement.
(3) The type and clear extent to which the information infringed on personal rights and interests;
(4) The degree of impact the network information has on society or the volume browser traffic in a certain time period;
(5) The possibility of the network provider adopting technological measures for preventing infringement and whether reasonable, relevant measures were adopted.
(6) Whether the network service provider adopted reasonable measures directed at repeat conduct by the same network user to against the same infringing information.
(7) Other factors relevant to the case.
Article 10: People's courts determining fault in network users' or network service providers' republishing network information shall comprehensively consider the following factors:
(1) The duty of care owed corresponding to the nature and range of influence of the re-posted material.
(2) The degree to which it is clear that the republished information is harmful to others' personal rights and interests.
(3) Whether substantive changes were made to the republished information or whether there were additions or changes to the title, creating a serious disconnect with the content and potentially misleading the public.
Article 11: Where network users or network service providers employ methods such as defamation or slander, damaging the credibility of a business operation and lowering the public opinion of its goods or services, and the business operation requests the the network user or network service provider bear tort liability, the people's courts should support it in accordance with law.
Article 12: Where network users or network service providers use the network to make public a natural person's genetic information, medical history materials, health inspection materials, criminal record, household addresses, private activities and other personal privacy and or information, causing harm to the other person, and the injured party requests that they bear tort liability, the people’s court shall support it. Except the following circumstances are excluded:
(1) the natural person has consented to disclosure within an agreed upon scope;
(2) revealed with the necessary scope to promote the public interest;
(3) by schools, scientific organizations and the like acting in the public interested for academic research or statistics purposed, upon the natural person's written consent, and with methods of disclosure insufficient to identify the natural persons;
(4) personal information disclosed online by a natural person themselves , or information already lawfully disclosed.
(5) Personal information obtained through legal channels
(6) laws of administrative regulations provide otherwise.
Where network users or network service providers publicize personal information as provided for in Items 4 and 5 of the previous Paragraph in a manner contrary to the public interest or social morality, or where the publication of this information infringes major interests of rights holder in the infringing information that merit protection, and the rights holder requests that network users or network service providers bear tort liability, the People’s Court shall support it.
Where state organs disclose individual's information in the course of performing their professional duties, the provisions of this article do not apply.
Article 13: Where information published by network users or network service providers that is based on sources such as documents made by state organs in the course of performing their duties or publicly disclosed official acts, has any of the following circumstances and infringes on the person rights and interests, and the injured person requests that the infringer bear tort liability,the people's courts should support it:
(1) Information published by network users or network service providers does not conform with the content at the information source described above;
(2) Network users or network service provides add insulting content, defamatory information, improper titles or mislead people by methods such as deleting information, adjusting the composition or rearranging;
(3) The above information sources have already been publicly corrected, but network users refuse to make the correction or network service providers do not make the correction;
(4) the above information sources have already been publicly corrected, but network users or network service providers continue to publish the information published prior to correction.
Article 14: Where the injured party and the infringing network user or network service provider enter an agreement where one side make payment and the other provides services such as deletions, blocking or breaking links, the people's courts should find them invalid.
Where certain network information is distorted, deleted or blocked without authorization, or where links are broken to prevent others from obtaining network information, and the network user or network service provider that published the information request that the infringer bear tort liability, the People’s Courts should support this. Where this conduct is carried out on behalf of another, both persons bear joint and several responsibility.
Article 15: Where the injured party requests that a perpetrator bear joint and several liability for employing, organizing, abetting or aiding others in publishing or forwarding network information that infringes upon the personal rights and interests of another, the people's court should support it;
Article 16: Where people's courts rule that the infringer bears responsibility such as to make a formal apology, remove influence or restore reputations it shall correspond to the specific means of infringement and the scope of resulting influence.infringement. Where the infringer refuses performance, the people’s courts may adopt reasonable enforcement methods such as issuing an online announcement or publishing the judgment opinoin, and the infringer will bear resulting expenses .
Article 17: Where network users or network service providers infringe the personal rights and interests of others causing property losses or serious emotional injury, and the injured person requests that they bear liability for compensation under Articles 20 and 22 of the Tort Law, the people’s courts should support it..
Article 18: Reasonable expenses paid out by the injured party so as to stop the violating conduct may be held to be property losses as provided for in article 29 of the Tort Law. Reasonable expenses include the costs incurred by the injured persons or their legally-designated representative in investigating and collection of evidence on the violating conduct. People's courts, on the basis of the parties' requests and specific case circumstances, may include lawyers fees budgets complying with relevant state organ regulations, within the scope of compensation.
Where there is no way to determine the property losses cause to the injured party by a violation of his rights and interests or the benefits acquired by the injuring party, people's courts may determine a compensation amount under 500,000 yuan based on the specific circumstances of the case.
The compensation amounts for emotional damages are determined on the basis of article 10 of the "Supreme People's Court Interpretation on Several Issues Regarding the Applicable Law for Determination of Compensation for Emotional Harms in Tort Cases"
Article 19: After the implementation of these Provisions, People's Courts hearing the first and second instance trials shall apply its provisions.
These Provisions do not apply in cases where final judgment was made before the implementation of these Provisions, and after their implementation a part applies for retrial or there is a retrial in accordance with a judgment supervision procedure decision.