Supreme People’s Court Regulations concerning Some Questions of Applicable Law in Handing Civil Dispute Cases involving the Use of Information Networks to Harm Personal Rights and Interests
In order to correctly hear civil dispute cases involving the use of information networks to harm personal rights and interests, on the basis of the provisions of the “General Principles of the Civil Code of the People’s Republic of China”, the “Tort Liability Law of the People’s Republic of China”, the “National People’s Congress Standing Committee Decision concerning Strengthening Online Information Protection”, the “Civil Procedure Law of the People’s Republic of China”, and by integration with judicial practice, these Regulations are formulated.
Article 1: Civil dispute cases involving the use of information networks to harm personal rights and interests as mentioned in these Regulations, refers to dispute cases triggered by harm to another persons’ right to a name, right to reputation, portrait right, right to privacy and other such personal rights and interests through the use of information networks.
Article 2: The People’s Court of the location of the infringing act or of the domicile of the defendant has jurisdiction over litigation raised over the use of information networks to harm personal rights and interests.
The location of the infringing act includes the location of the computer or other terminal equipment through which the infringing act is committed, the location where the result of the infringement takes place and the domicile of the person whose rights were infringed.
Article 3: Where plaintiffs sue network users or network service providers on the basis of the provisions of Paragraphs 2 and 3 of Article 36 of the Tort Liability Law, People’s Courts should accept these cases.
Where plaintiffs only sue network users, and a network user requests to add the network service provider suspected of infringement as a joint defendant or a third person, the People’s Court shall allow this.
Where plaintiffs only sue network service providers, and a network service provider requests that an identifiable network user is added as a joint defendant or a third person, the People’s Court shall allow this.
Article 4: Where plaintiffs sue network service providers, and a network service provider defends itself on the grounds that the information suspected to be infringing was published by the network user, the People’s Court may, on the basis of a request by the plaintiff and the concrete circumstances of the case, order network service providers to provide the People’s Court with the name, contact method, network address and other such information by which the network user suspected of infringement can be determined.
Where network service providers refuse to provide this without proper cause, the People’s Court may, on the basis of the provisions of Article 114 of the Civil Procedure Law, take punitive measures against the network service provider.
Where the plaintiff requests that a network user is added as defendant on the basis of the information provided by the network service provider, the People’s Court shall allow this.
Article 5: On the basis of the provisions of Paragraph 2 of Article 36 of the Tort Liability Law, where the person suffering infringement sends notice to the network service provider in written form or using a method published by the network service provider, containing the following content, the People’s Court shall find [the notice] valid:
(1) the name and contact method of the notifier;
(2) the network address where it is demanded that necessary measures are taken, or corresponding information can sufficiently accurately be determined as infringing.
(3) the reason the notifier demands deletion of corresponding information.
Where notices sent by persons suffering infringement do not meet the above criteria, and the network service provider holds they are exempt from responsibility, the People’s Court shall support this.
Article 6: When the People’s Court applies the provisions of Paragraph 2 of Article 36 of the Tort Liability Law, to determine whether deletion, blocking, severance of links and other such necessary measures adopted by network service providers are timely or not, it shall judge the matter comprehensively on the basis of factors such as the nature of the network service, the form of valid notification and its degree of accuracy, the type and extent of the infringement of rights and interests through online information, etc.
Article 7: Where a network user whose published information was subject to measures such as deletion, blocking, severance of links, etc., holds that the network service provider bears liability for violation of contract or tort liability, and the network service provider refutes this on the grounds of received notification, the People’s Court shall support this.
Where network users who are subject to measures such as deletion, blocking, severance of links, etc., request the network service provider to provide the content of the notification, the People’s Court shall support this.
Article 8: Where a notifier’s notice leads to a network service provider mistakenly adopting measures such as deletion, blocking, severance of links, etc., and network users demand that the notifying person bears tort liability, the People’s Court shall support this.
Where the network user subject to mistaken measures demands that the network service provider adopts corresponding restorative measures, the People’s Court shall support this, except where restoration is not possible because of technological limitations.
Article 9: Where a People’s Court determines, on the basis of Paragraph 3 of Article 36 of the Tort Liability Law, whether a network service provider “knew”, it shall comprehensively consider the following factors:
(1) whether or not network service providers, through manual or automatic means, recommended, ranked, selected, edited, arranged, revised or in other ways processed the infringing online information;
(2) the ability to manage information that network service providers should have, as well as the nature and method of the provided service, and the extent of the probability that it might cause infringement;
(3) the category of personal rights and interests infringed by the online information concerned, as well as the degree of clarity;
(4) the extent of the social influence of the online information concerned, or its browsing rates for a determined period;
(5) the technological possibility for network service providers to adopt measures to prevent infringement, and whether corresponding reasonable measures have been adopted;
(6) whether or not network service providers have adopted corresponding reasonable measures against the same network users’ repeated act of infringement or the same infringing information;
(7) other factors related to the specific case.
Article 10: When people’s courts determine fault in reprinting online information by network users or network service providers, as well as its degree, they shall comprehensively consider the following factors:
(1) the duty of care borne by the reprinting subject that is corresponding to its nature and scope of influence;
(2) the extent to which it is clear that the reprinted information infringes another person’s personal rights;
(3) whether or not the reprinted information is substantially altered, whether or not titles of articles are added or revised, the probability that it leads to grave inconformity with content or might mislead audiences.
Article 11: Where network users or network service providers adopt libellous and slanderous methods, and harm the public’s trust in commercial subjects, lowering the social valuation of their products or services, and the commercial subject demands that the network user or network service provider bears tort liability, the People’s Court shall support this according to the law.
Article 12: Where network users of network service providers use the network to publicize genetic information, medical history materials, health inspection materials, criminal records, household addresses, private activities and other personal information or personal privacy of natural persons, resulting in harm to the other person, and the person suffering infringement demands they bear tort liability, the People’s Court shall support this. Except under the following circumstances:
(1) the natural person has agreed in writing and publication takes place within the scope of the agreements;
(2) in order to spur the social public interest, and it is within the scope of necessity;
(3) by schools, scientific institutions, etc., for the purposes of scientific research for the public interest, or for statistical purposes, with the written agreement of the natural person, and the method of publication does not allow the identification of a specific natural person;
(4) where natural persons themselves publish this information online or other personal information that is already lawfully published;
(5) personal information that is obtained through lawful channels;
(6) except where laws or administrative regulations provide otherwise.
Where network users or network service providers publicize personal information as provided in Items 4 and 5 of the previous Paragraph in a manner that violates the social public interest or social morality, or the publication of the information concerned harms major interests of rights holders that merit protection, and the rights holder requests that network users or network service providers bear tort liability, the People’s Court shall support his.
Where State organs publish personal information in the exercise of their duties, the provisions of this Article do not apply.
Article 13: Where network users or network service providers, publish information from sources such as documentation created by State organs according to their duties and openly carried out official acts, etc., which infringes another person’s personal rights, one of the following circumstances is present, and the person suffering infringement requests that the infringer bears tort liability, the People’s Court shall support this:
(1) information published by network users or network service providers does not conform to the information source described above:
(2) where network users or network service providers cause misunderstanding by adding humiliating content, libellous information, improper titles or through modifying information, adjusting its structure, changing its order, and other such methods;
(3) where the above-mentioned information sources have been publicly corrected, but the network user refuses to correct it, or the network service provider does not correct it;
(4) where the above-mentioned information sources have been publicly corrected, and network users or network service providers continue to publish the pre-correction information.
Article 14: People’s Courts shall find invalid agreements between persons suffering infringement and network users or network service providers who committed infringement, in which one sides pays remuneration, and the other side provides deletion, blocking, severance of links and other such services.
Where specific online information is distorted, deleted or blocked without authorization, or other persons are prevented from obtaining online information through the method of severing links, and the network user or network service provider publishing the information concerned request that the infringer bears tort liability, the People’s Courts shall support this. Where entrustment by others is accepted to carry out the acts concerned, the entrusting person and the entrusted person bear joint liability.
Article 15: Where another person is employed, organized, instigated to or assisted with the publication or reprinting of online information that infringes another person’s personal rights and interests, and the person suffering infringement requests that the actors bear joint liability, the People’s Courts shall support this.
Article 16: Where People’s Courts find that the infringer bears a duty to make a formal apology, remove the influence, restore the reputation or other forms of responsibility, this shall correspond to the concrete method and the scope of the resulting influence of the infringement. Where the infringer refuses to carry this out, the People’s Courts may adopt reasonable methods including publishing an online declaration or publishing the judgement documents to enforce the matter, the expenses resulting therefrom are borne by the infringer.
Article 17: Where network users or network service providers infringe another person’s personal rights and interests, resulting in asset losses or grave spiritual harm, and the person suffering infringement requests that they bear liability for compensation on the basis of Articles 20 and 22 of the Tort Liability Law, the People’s Courts shall support this.
Article 18: Reasonable expenses incurred by the person suffering infringement to terminate the act of infringement may be considered as asset losses as provided in Article 20 of the Tort Liability Law. Reasonable expenses include reasonable expenses that the person suffering the infringement, or an entrusted agent incurs in investigating the infringing act and gathering evidence. The People’s Courts may, on the basis of the requests of the parties concerned and the concrete circumstances of the case, include lawyer’s fees that conform to provisions of relevant State departments in their scope of calculating compensation.
Where it is not possible to determine the asset loss the person suffering infringement suffered because of harm to personal rights, or the profit the infringer obtained from this, People’s Courts may determine the amount of compensation, on the basis of the concrete circumstances of the case, to the extent of 500.000 Yuan or less.
Compensatory amounts for spiritual harm are to be determined according to the provision of Article 10 of the “Supreme People’s Courts Interpretation concerning Some Questions on Determining Liability for Compensating Spiritual Harm in Civil Infringements”.
Article 19: After these Regulations take effect, these Regulations will apply in first and second instance cases that are currently being adjudicated in People’s Courts.
These Regulations do not apply to cases that have been terminated before these Regulations took effect, where a concerned party requests a re-trial or a re-trial is decided through the judicial monitoring procedure after these Regulations take effect.
第十六条 人民法院判决侵权人承担赔礼道歉、消除影响或者恢复名誉等责任形式的,应当与侵权的具体方式和所造成的影响范围相当。 侵权人拒不履行的,人民法院可以采取在网络上发布公告或者公布裁判文书等合理的方式执行,由此产生的费用由侵权人承担。
第十八条 被侵权人为制止侵权行为所支付的合理开支,可以认定为侵权责任法第二十条规定的财产损失。 合理开支包括被侵权人或者委托代理人对侵权行为进行调查、取证的合理费用。 人民法院根据当事人的请求和具体案情,可以将符合国家有关部门规定的律师费用计算在赔偿范围内。