Measures on the Administration of Internet Advertising (Draft for Solicitation of Public Comments)

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[Source]http://zqyj.chinalaw.gov.cn/index
Unit Soliciting Comments:  State Administration for Market Regulation
Comment Period: through 2021-12-29

Article 1: These Measures are drafted on the basis of the PRC Advertising Law (hereinafter "Advertising Law") the PRC E-commerce Law (hereinafter E-commerce Law) and other laws and administrative regulations, so as to regulate internet advertising activities, protect consumers' lawful rights and interests, promote the healthy development of the internet advertising industry, and to preserve fair competition in the market economic order.

Article 2: The provisions of the Advertising Law and these Measures apply to commercial advertising activities carried out within the mainland territory of the People's Republic of China using websites, web pages, internet applications, and other internet media, in forms such as text, images, audio, or video, to either directly or indirectly market goods or services.

Where in accordance with laws, administrative regulations, rules, and relevant state provisions, information such as the product or services' name, specifications, model number, price, usage methods, production methods, and notifications shall be provided to consumers, follow those provisions.

Article 3: "Advertisers" as used in these Measures refers to natural persons, legal persons or other organizations that design, produce and publish internet advertisements either by themselves or by retaining others, for the purpose of promoting the sale of products or services,

"Internet advertising agents" as used in these Measures refers to natural persons, legal persons, or other organizations that are retained to provide internet advertisement design and production and representation services.

"Internet advertisement publishers" as used in these measures refers to natural persons, legal persons, or other organizations that use internet media to publish internet advertisements for advertisers or the advertising agents retained by advertisers.

“Internet information service providers“ as used in these Measures refers to natural persons, legal persons, or other organizations that provide information services through the Internet and who do not participate in activities such as internet advertisement design, production, representation, and publication.

Article 4: Internet advertisements shall be truthful and lawful, adhere to the correct orientation, present the advertising content in a healthy manner, and be meet the requirements for the construction of a socialist spiritual civilization and carrying forward the exceptional traditional culture of the Chinese people.

Internet advertising market entities shall obey the laws, administrative regulations, and relevant state provisions, be honest and credible, and compete fairly.

Article 5: Internet advertising industry organizations are to be encouraged and supported in drafting industry regulations, self-discipline conventions, and relevant standards in accordance with laws, regulations, rules, and relevant state provisions, to strengthen industry self-discipline and lead internet advertising market entities to proactively practice the Core Socialist Values and engage in internet advertising activities in accordance with law, promoting the establishment of creditworthiness and ethics in the advertising industry, and promoting the healthy development of the internet advertising industry.

Article 6: Units or individuals must not use the internet to design, produce, represent or publish advertisements for goods or services the production or sale of which is prohibited by laws or administrative regulations, as well as goods or services for which advertising is prohibited.

The internet must not be used to publish advertisements for prescription medicines and tobacco.

Article 7: Advertisements for special products or services, such as medical care, medicines, foods for special medical purposes, medical instruments, pesticides, veterinary medicine, or health products, for which laws and administrative regulations provide that the advertisement review organs must conduct a review, must not be published without review.

For advertisements requiring review, the publication shall be in strict accordance with the content that passed review, and must not be edited, spliced, or revised, and must not have links, QR codes, and so forth added.

Where it is necessary to revise the content of advertising that has already passed review, an application for a new review shall be made.

Article 8: Internet advertisements shall be distinguishable and shall enable consumers to identify them as advertisements.

Where internet media are used to market products or services in forms such as paid listings, news reports, experience sharing, and consumer reviews, or other means that have links for purchases attached, it shall be clearly labeled as an 'advertisement.

Article 9: Internet advertisements published in forms that launch audio or video spots or pop-up windows and so forth shall have conspicuously labeled 'close' symbols, ensuring that one click will close them, and must not have the following:

(1) not having a close symbol or requiring a certain time period to conclude before they can be closed;

(2) The close symbols are fake, cannot be clearly identified or located;

(3) Requiring two or more clicks to close a single advertisement;

(4) Advertisements continue to pop up after closing while browsing a single page;

(5) Other conduct that impacts one-click closure.

Deceitful or misleading methods must not be used to induce users to click on advertisements.

Article 10: Advertisements for extracurricular training aimed at primary and secondary or kindergarten students must not be published through the internet.

Websites, web pages, internet applications, and other internet mediums aimed at minors must not be used to publish advertisements for medical care, medicine, health foods, medical instruments, cosmetics, alcohol, or beauty, as well advertisements for online games that are not conducive to minors' physical and psychological health.

Article 11: Advertisers shall bear responsibility for the veracity and legality of internet advertisements' content.

The supporting documents that advertisers require for publication of internet advertisements, such as entity identification, administrative permits, and cited content, shall be truthful, lawful, and valid.

Advertisers may self-publish advertisements through websites they design or other internet media for which they have lawful usage rights, and may also entrust internet Advertising agents or advertisement publishers to publish advertisements. Advertisers self-publishing internet advertisements shall ensure that the publication channels comply with laws and administrative regulations, and perform the responsibilities that laws provide shall be undertaken by advertisement publishers, such as for file management.

When revising the content of internet advertisements for which advertisers entrusted the publication, they shall give notice in writing or other verifiable forms to the internet advertising agents or advertisement publishers that are providing them with services.

Where foreign advertisers that do not have a representative office or branch institution in the mainland publish cross-border e-commerce advertisements for imported retail goods through cross-border e-commerce platforms or by entrusting publication, the advertisers shall entrust a mainland market entity to provide customs with information such as on declarations, payments, logistics, and storage, and take on the responsibility of the advertiser.

Article 12: Internet advertising agents and publishers shall obey the following provisions:

(1) Follow relevant state provisions in establishing and completing systems for advertising businesses registration, reviews, and archive management;

(2) Review and inspect advertisers' registered information such as their name, address, and valid contact information; record and store electronic data related to advertising activity; establish registry archives and periodically verify and update them, with an archiving and storage period of at least 3 years from the date on which publication of an advertisement was concluded;

(3) Check supporting documents related to advertising and advertising content: internet Advertising agents must not provide design, production, or representation services for, and advertisement publishers must not publish, advertisements that have non-compliant content, have failed to obtain appropriate administrative permits, or have otherwise incomplete supporting documents;

(4) Allot personnel familiar with advertising laws and regulations to review advertisements, and those with capacity shall also establish designated bodies, responsible for the review of internet advertisements;

(5) Those engaged in statistical surveys of advertising operations are to truthfully, accurately, completely, and promptly provide statistical materials.

Article 13: Platform operators providing internet information services shall employ measures to prevent and stop false and illegal advertising, improving technical measures for the discovery and handling of the provision of advertising and promotion for illegal or criminal activities and the insertion of malicious code or illegal information in advertising services, and complying with the following provisions:

(1) Record and store the names, addresses, contact information, and other information of advertisers, internet advertising agents and advertisement publishers, with the storage period being at least 3 years from the data on which provision of the information services concluded;

(2) Conduct monitoring and inspections of the advertising content displayed or published using their information services, and where they know or should know that illegal advertisements are published, they shall employ measures to stop it such as giving notice to make corrections, deletion, blocking, and disconnecting links, and store the relevant records; and where violations or crimes are involved, they are to promptly report it to the public security organs;

(3) Establish mechanisms for accepting and addressing complaints and reports, setting up convenient portals for complaints and reports or publishing the means for making them, to promptly accept and address the public's complaints and reports;

(4) Cooperate with the market regulation departments carrying out advertisement monitoring in accordance with law;

(5) Cooperate with the market regulation departments in investigating and addressing illegal conduct in internet advertising in accordance with law, promptly employing technical methods to store evidence of suspected illegal advertisements, truthfully providing information on the advertiser, advertising agents, and advertisement publishers, such as their business name, names, contact information, advertisement revision records, and transaction data on the involved goods and services;

(6) Based on the service agreement and rules, carry out measures such as warnings and suspending or stopping services for the entities responsible for using the information services to publish false or illegal advertisements, and announce this publicly.

Article 14: Where methods such as algorithmic recommendation is used in publishing advertisements, the backend data of the delivery program is part of the internet advertising file.

The storage period for internet advertising files and related supporting documents is not to be less than three years from the date on which the publication was completed; but where laws and administrative regulations provide otherwise, follow those provisions.

Article 15: Use of the internet to publish or send advertisements must not influence users' regular use of the networks.

Absent the users' consent or request, advertisements or advertisement links must not be attached to email or internet instant messaging information sent to users, and internet advertising must not be sent to their communications devices, guidance equipment, smart appliances, and so forth.

Advertisements must not be inserted in websites where users search for government services or in related applications.

Article 16: In publishing internet advertisements containing links, the advertiser and internet advertising agents and publishers shall check the advertising content of the next level of the link.

Where internet advertising agents and publishers can prove that they performed their responsibilities in employing measures to prevent the modification of linked advertising content and provide the true name, address, and contact methods for the entity conducting the illegal advertising, administrative punishments may be lenient, commuted, or waived in accordance with law.

Article 17: Where the content of internet livestreams constitutes a commercial advertisement, the related broadcast operators and broadcast marketers shall perform the responsibilities and obligations of internet advertising agents, advertisement publishers, or advertising spokespersons.

Internet livestreams must not be used to publish advertisements for medical care, medications, foods for special medical purposes, medical instruments, or health foods.

Article 18: The implementation of administrative punishments for illegal internet advertising activity is to be in the jurisdiction of the market regulation department for the area where the advertisement publishers are located. Where the market regulation departments for the area where the advertisement publishers are located has difficulty taking jurisdiction over advertisers, Advertising agents, internet information service providers, and advertising spokespersons that are in different areas, they may transfer the information on the illegality of advertisers, Advertising agents, and internet information service providers to be handled by the market regulation department where they are located, and where advertising spokespersons are involved, they may transfer information on the illegality to be handled by the market regulation department for the area where the spokespersons' management company is registered, or for the spokesperson's household registration or domicile.

Where the market regulation department for the area where the advertisers or the advertising agents are located has first discovered leads on illegality or received complaints or reports, they may also take jurisdiction.

The market regulation department for the area where the advertisers are located is to take jurisdiction of implementing administrative punishments for advertisers with illegal self-published internet advertising activities.

Article 19: When market regulation departments find illegal internet advertisements, they may exercise the following powers:

(1) Conducting on-site inspections of venues suspected of engaging in illegal advertising.

(2) Questioning parties suspected of illegality, their legally-designated representatives or principle responsible person, and their relevant personnel; conducting investigations of relevant units or individuals.

(3) Requesting that parties suspected of illegality provide relevant supporting documents by a set time;

(4) Accessing or reproducing contracts, receipts, account books, advertisement works, and internet advertisements' backend data that are related to the suspected illegal advertisements, and confirming the content of internet advertisements through means such as screen captures, screen recording, saving webpages, taking photos, and making audio or video recordings;

(5) Sealing or seizing advertisments, business tools, equipment and other property directly related to suspected illegal advertising;

(6) Ordering suspension of publication for suspected illegal advertising that might cause serious consequences;

(7) Other powers provided by law or administrative regulations.

When market regulation departments lawfully exercise the powers provided for in the preceding paragraph, the parties shall assist and cooperate, and must not refuse, obstruct, or conceal the true circumstance.

Article 20: Records from market regulation departments' technical monitoring of internet advertising may be used as electronic data evidence for implementing administrative punishment or employing administrative measures against illegal internet advertisements.

Article 21: Where the first paragraph of article 6 of these Measures is violated by using internet advertising to market products that the production and sale of is prohibited or prohibited services, or for goods and services for which it is prohibited to publish advertisements, punishment is to be given in accordance with article 57(5) of the Advertising Law.

Where paragraph 2 of article 6 of these Measures is violated by using the internet to publish advertisements for prescription medication or tobacco, punishment is to be given in accordance with article 57(2) of the Advertising Law.

Article 22: Where article 7 of these Measures is violated by failing to review published advertisements or not following the approval documents from an advertisement review in publishing internet advertisements, punishment is to be given in accordance with item 14 of the first paragraph of article 58 of the Advertising Law.

Article 23: Where article 8 of these Measures is violated by having internet advertisements that are not distinguishable, punishment is to be given in accordance with the third paragraph of article 59 of the Advertising Law.

Article 24: Where the first paragraph of article 9 of these Measures is violated by using the internet to publish advertisements without a clear close symbol and assuring that a single-click closure, punishment is to be given in accordance with paragraph 2 of article 62 【sic, should be 63】 of the Advertising Law.

Where the second paragraph of article 9 of these Measures is violated by using deceitful or misleading methods to induce users to click on advertisements, market regulation departments at the county level or above are to order corrections and fine the responsible advertisers, advertising agents, and advertisement publishers up to 3 times the value of unlawful gains, but not exceeding 30,000 RMB; and where there are no unlawful gains, give a fine of up to 10,000 RMB.

Article 25: Where the first paragraph of article 10 of these Measures is violated by using the internet to public advertisements for extracurricular training, market regulation departments at the county level or above are to order corrections and fine the responsible advertisers, advertising agents, and advertisement publishers up to 3 times the value of unlawful gains, but not exceeding 30,000 RMB; and where there are no unlawful gains, give a fine of up to 10,000 RMB; but where laws and administrative regulations have other provisions regarding the organ for law enforcement or the legal liability, follow those provisions.

Where paragraph 2 of article 10 of these Measures is violated, punishment is to be given in accordance with article 57(6) of the Advertising Law.

Article 26: Where items 1-3 of article 12 or article 14 of these Measures are violated by internet advertising agents or advertisement publishers failing to establish and complete management systems for advertising operations, or failing to check the content of advertisements, punishment is to be given in accordance with the first paragraph of article 60 of the Advertising Law.

Where item 5 of article 12 of these measures is violated by the failure to provide advertising statistical survey materials are required, the market regulation departments at the county level or above are to order corrections and give a fine of up to 10,000 RMB.

Article 27: Where internet platform operators violate item 1 of article 13 of these Measures, punishment is to be given in accordance with the relevant provisions of the E-commerce Law and other laws and administrative regulations.

Where item 2 of article 13 of these Measures is violated by internet platform operators not stopping what they know or should know are illegal internet advertising activities, punishment is to be given in accordance with article 63 of the Advertising Law.

Where internet platform operators violate items 3-6 of article 13 of these Measures, the market regulation departments at the county level or above are to order corrections and fine the internet information service providers up to three times the value of unlawful gains but not exceeding 30,000 RMB; and where there are no unlawful gains, give a fine of up to 10,000 RMB.

Article 28: Where the first or third paragraph of article 15 of these Measures is violated, impacting users' normal use of the internet, market regulation departments at the county level or above are to order corrections and fine the responsible advertisers, advertising agents, and advertisement publishers up to 3 times the value of unlawful gains, but not exceeding 30,000 RMB; and where there are no unlawful gains, give a fine of up to 10,000 RMB.

Where the second paragraph of article 15 of these Measures is violated by sending advertisements without consent, the advertisers are to be given punishments in accordance with article 62 of the Advertising Law, and the responsible Advertising agents and advertisement publishers are to be fined up to three times the amount of unlawful gains, but not exceeding 30,000 RMB; and where there are no unlawful gains, give a fine of up to 10,000 RMB.

Article 29: Where the provisions of these Measures are violated by not cooperating market regulation departments' oversight inspections or not cooperating with market regulation departments' carrying out monitoring of internet advertisement monitoring in accordance with law, market regulation departments at the county level or above are to order corrections and fine the responsible advertisers and internet advertising agents and advertisement publishers up to 3 times the value of unlawful gains, but not exceeding 30,000 RMB; and where there are no unlawful gains, give a fine of up to 10,000 RMB.

Article 30: Administrative punishment decisions made by the market regulation departments in accordance with the Advertising Law and these Measures shall be displayed to the public through the National Enterprise Credit Information Publicity System; where the requirements are met, enter persons in the List of the Untrustworthy with Serious Violations in accordance with the provisions of the Measures for the Management of the Market Regulation List of the Untrustworthy with Serious Violations.

Article 31: These Measures are to take effect on ____. The "Temporary Measures on the Administration of Internet Advertising" published by the State Administration for Industry and Commerce as order No. 87 on July 4, 2016, is simultaneously abolished.

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