Xinhua: Standardizing Case Trials of Online Torts, the Supreme People’s Court Issues a Judicial Interpretation

This article was published by Xinhua on 9 October.

(Journalists Luo Sha, Xu Wei)

On the 9th, the Supreme People’s Court published the “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“, these Regulations will take effect on 10 October.

The Supreme People’s Court spokesperson, Sun Jungong, stated that this just-published Judicial Interpretation created a system of judicial rules for problems of Internet law together with the “Regulations concerning Some Issues of Applicable Law in Hearing Civil Dispute Cases on Infringement of the Right to Dissemination through Information Networks” and the “Interpretation concerning Some Questions of Applicable Law in Hearing Criminal Cases of Fabrication and Wilful Dissemination of False and Terrorizing Information”, and is of significant importance in standardizing online activities and establishing a desirable online order.

Courts can order network service providers to provide personal information and lock out infringers.

“When persons carrying out infringing acts online are hidden in the shadows, and publish posts without gods and ghosts knowing about it, it is often difficult to determine the defendant when persons suffering an infringement want to file a complaint”, said Yao Hui, the Vice-President of the First Civil Chamber of the Supreme People’s Court.

With regard to this sort of situation, this Judicial Interpretation provides new rules in two areas: the first is in terms of judicial procedure, it allows plaintiffs to only sue a network user or a network service provider. Where the defendant requests the addition of the network service provider suspected of infringement, or a network user can be determined as a joint defendant or third party, the People’s Court shall allow this.

The second clarifies that after the plaintiff files a complaint, People’s Courts may, on the basis of the circumstances of the case and the request of the plaintiff, order a network service provider to provide the personal information of an online user who is suspected of infringement, in order to make it easier for the plaintiff to file the case. This information includes the name, contact method, network address and other such information, by which a network user suspected of infringement can be identified.

“Where network service providers refuse to provide this information without valid grounds, People’s Courts may adopt punitive measures against the network service providers on the basis of the corresponding provisions of the Civil Procedure Law”, the Judicial Interpretation stipulates at the same time.

Liability must also be borne for “retweeting”, the determination of “fault” is key

Sun Jungong stated that social media, such as Weibo and WeChat which developed rapidly in recent years, as well as the self-media that these engendered, have a power far exceeding that of traditional media in aspects such as scope of distribution, influence, etc.

“In the light of this characteristic, the Judicial Interpretation includes provisions concerning the retweeting of online information”, he said.

The Judicial interpretation stipulates that People’s Courts establishing the fault of network users and network service providers in retweeting online information and its extent, shall comprehensively consider the following factors: a duty of care commensurate with the nature and scope of influence of the reprinting subject; the extent to which it is clear that the retweeted information infringes another person’s personal rights; whether or not the retweeted information has been substantially altered, whether or not article titles are added or altered, and the probability that this leads to grave inconsistency with content and may mislead the public.

“At present, the number of cases concerning self-media torts is not too prominent, but following the development of network technology, I feel that this sort of cases may become more frequent in the future”, Yao Hui stated, one important factor in establishing the responsibility borne by retweeters is “fault”, this requires that judges consider and judge the matter by integrating evidence and objective facts.

“For example, if you are a ‘Big V’, you should know that you might rashly retweet something, with a large influence. Your works, your every move might influence a great audience, your legal duties therefore include greater attention. You should be more cautious”.

Saying “no” to ‘paid-for post deletion” and “water armies”

“IN practice, one important factor among the reasons for the existence of the Internet industry, represented by illegal post deletion service, is that Internet technology is asymmetrical, network users posting infringing information or network service providers often have a technological superiority. This Judicial Interpretation provides rules against these activities through a civil liability angle”, Sun Jungong said.

The Judicial Interpretation provides that the People’s Courts shall determine invalid agreements between a person suffering infringement and a network user or network service provider committing infringement in which one side 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.”

The Judicial Interpretation at the same time clarifies that 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.

Reasonably determining whether network service providers “know” about infringement

Paragraph 3 of Article 36 of our country’s Tort Liability Law provides that: “Network service providers who know that network users use their network services to infringe another person’s civil rights and interest, and do not adopt necessary measures, bear joint liability with the network user concerned.”

This Judicial Interpretation includes the following provision on this matter: 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: 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; 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; the category of personal rights and interests infringed by the online information concerned, as well as the degree of clarity; the extent of the social influence of the online information concerned, or its browsing rates for a determined period; the technological possibility for network service providers to adopt measures to prevent infringement, and whether corresponding reasonable measures have been adopted; 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; other factors related to the specific case.

“The Internet sector has entered a phase in which content, community and commerce are highly integrated, how to establish this “knowledge” required some caution”, Sun Jungong said, an overly stern standard might create overly onerous burdens for network service providers, influencing the free communication of lawful information. Overly lax standards then might lead to network service providers who are complacent about carrying out the necessary duty of care, indulging and even actively carrying out tortious acts.

Increased protection for personal information, expansion of judicial protection for persons suffering infringement

Sun Jungong stated that in the Internet era, the protection of personal information and especially personal electronic information faces many challenges.

This Judicial interpretation provides that where network users or network service providers use the network to publish genetic information, medical history materials, health investigation materials, criminal records, household addresses, personal activities and other such private and personal information, resulting in harm to others, and the person suffering infringement requests that they bear tort liability, the People’s Courts shall support this.

The Judicial Interpretation provides at the same time for circumstances in which exceptions are made. These include publication within the scope of an agreement with the natural person in writing, within the scope necessary to promote the social public interest, etc.

Furthermore, in response to the reality that in judicial practice, costs for rights defence are high, and the costs for using the network to infringe other persons’ personal rights and interests are low, the Judicial Interpretation provides that “reasonable expenses incurred by the person suffering infringement to terminate the infringing act, may be determined as asset loss according to the provisions of Article 20 of the Tort Liability Law”.

“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”, the Judicial Interpretation provides.

Sun Jungong said that these Regulations expand the judicial protection for persons suffering infringement, benefit containing the sprawl of online torts and thereby realize that the online atmosphere is normal and orderly.