Provisions on Several Issues Concerning the Application of the Law in the Trial of Civil Dispute Cases Involving the Use of Information Networks to Infringe Personal Rights and Interests

Article 2: In a legal action instituted in connection with the use of an information network to infringe personal rights and interests, the people's court of the place where the infringement occurred or where the defendant is domiciled shall have jurisdiction.

The place where an infringing action was carried out includes the place where the computer or other such terminal equipment employed to carry out the alleged infringement is located, and the place where the result of the infringement occurred includes the place where the injured party is domiciled.

Article 3: Where a plaintiff institutes a legal action against a network user or network service provider pursuant to the second or third paragraph of Article 36 of the Tort Liability Law, the people's court shall accept the same.

Where the plaintiff institutes a legal action solely against a network user and the network user requests the addition of the alleged infringing network service provider as a co-defendant or third party, the people's court shall permit the same.

Where the plaintiff institutes a legal action solely against the network service provider and the service provider requests the addition of an identifiable network user as a co-defendant or third party, the people's court shall permit the same.

Article 4: Where a plaintiff institutes a legal action against a network service provider and the network service provider argues that the alleged infringing information was published by a network user, the people's court may, based on the request of the plaintiff and the specific circumstances of the case, order the network service provider to provide to it information that can identify the network user suspected of infringement, such as his/her/its name, contact information and network address.

If the network service provider refuses to provide the same without a legitimate reason, the people's court may take measures against the network service provider such as imposing penalties in accordance with Article 114 of the Civil Procedure Law.

If, based on the information provided by the network service provider, the plaintiff requests that the network user be added as a defendant, the people's court shall permit the same.

Article 5: Pursuant to the second paragraph of Article 36 of the Tort Liability Law, where an injured party gives notice to the network service provider in writing or by the means published by the network service provider, and such notice contains the following information, the people's court shall find the same to be valid:

(1) the notifying party's name and contact information;

(2) the network address for the taking of the necessary measures or relevant information sufficient to accurately locate the infringing information; and

(3) the reasons for which the notifying party wishes to have the relevant information deleted.

If the notice sent by the injured party does not satisfy the foregoing conditions and the network service provider requests that it be exempted from liability, the people's court shall uphold such request.

Article 6: When a people's court applies the second paragraph of Article 36 of the Tort Liability Law to determine whether the network service provider took the necessary measure of deletion, masking, severing the links, etc. in a timely manner, it shall do so comprehensively based on factors such as the nature of the network services, the form and degree of accuracy of the valid notice, and the type and degree of infringement of rights and interests by the online information.

Article 7: If a network user that had a measure such as deletion, masking or severing of the links taken against the information that he/she/it published demands that the network service provider bear liability for breach of contract or tort liability and the network service provider argues in its defence that it did so subsequent to receiving notice, the people's court shall uphold its argument.

If the network user against whom the measure of deletion, masking, severing of the links, etc. was taken requests that the network service provider provide the details of the notice, the people's court shall uphold such request.

Article 8: If a network service provider mistakenly takes a measure such as deletion, masking or severing of the links due to a notice from a notifying party and the network user against whom the measure was taken requests that the notifying party bear tort liability, the people's court shall uphold such request.

If the network user against whom the measure was mistakenly taken requests that the network service provider take the appropriate restoration measure, the people's court shall uphold such request, unless such restoration is impossible due to technical limitations.

Article 9: When a people's court is determining whether a network service provider was “aware” pursuant to the third paragraph of Article 36 of the Tort Liability Law, it shall comprehensively consider the following factors:

(1) whether the network service provider manually or automatically processed the infringing online information by means such as recommendation, ranking, selection, editing, arranging or revising;

(2) the information management capacity that the network service provider ought to have, and the nature of the services it provides, the method of providing the same and the potential for the same to give rise to infringement;

(3) the type of infringement of personal rights and interests by the online information and the extent to which such infringement is obvious;

(4) the extent of the social influence of the online information in question or the number of times such information was accessed during a certain period of time;

(5) the technical possibility of the network service provider taking infringement prevention measures and whether it took the corresponding reasonable measures;

(6) whether the network service provider took the corresponding reasonable measures against the repeated infringement by, or the same infringing information of, the same network user; and

(7) other factors relevant to the case.

Article 10: When a people's court is determining the fault of a network user or network service provider in republishing online information and the extent of such fault, it shall comprehensively consider the following factors:

(1) the duty of care borne by the republishing entity commensurate with its nature and the scope of its influence;

(2) the extent of obviousness of the infringement of the personal rights and interests of another by the republished information; and

(3) whether the republished information was substantively revised or whether a title was added or the existing title revised, making it seriously inconsistent with the contents and giving rise to the possibility of misleading the public.

Article 11: If a network user or network service provider damages the public's trust in a business entity or degrades the public evaluation of its products or services through means such as defamation or vilification and the business entity requests that the network user or network service provider bear tort liability, the people's court shall uphold such request in accordance with the law.

Article 12: If a network user or network service provider uses the network to disclose private information of natural persons such as their genetic information, medical history, physical examination results, criminal record, home address or private activities, or other personal information, thereby causing harm to another, and the injured party requests that such network user or network service provider bear tort liability, the people's court shall uphold such request, except in the following circumstances:

(1) the natural persons agreed to the same in writing and the disclosure was within the specified scope;

(2) the same was done to promote the public good and was within the specified scope;

(3) the same was done on the basis of the public good by a school, scientific research institute, etc. for academic research or statistical purposes, with the written consent of the natural persons, and the method of disclosure was insufficient to identify specific natural persons;

(4) the information was information disclosed online by the natural persons of their own accord or was personal information that had already previously been lawfully disclosed;

(5) the information was personal information obtained through a lawful channel; or

(6) as otherwise provided in laws or administrative regulations.

If a network user or network service provider discloses personal information as specified in Item (4) or (5) of the preceding paragraph in a manner that runs counter to the public good or public morality or the disclosure of the information infringes a major interest of the rights holder that is worthy of protection and the rights holder requests that such network user or network service provider bear tort liability, the people's court shall uphold such request.

The provisions of this Article shall not apply when a state authority discloses personal information in the exercise of its functions and powers.

Article 13: If any of the circumstances set forth below applies to a network user or network service provider when information published by it based on an information source such as a document issued ex officio by a state authority or an act publicly carried out by such authority within its functions and powers infringes the personal rights and interests of another and the injured party requests that the tortfeasor bear tort liability, the people's court shall uphold such request:

(1) the information published by the network user or network service provider is inconsistent with that from the aforementioned information source;

(2) the network user or network service provider caused misunderstanding through the addition of insulting contents, defamatory information or an inappropriate title or through the addition or deletion of information, rearrangement of the structure, changing of the order, etc.;

(3) the aforementioned information source has been publicly corrected, but the network user refuses to make the corrections or the network service provider does not make the corrections; or

(4) the aforementioned information source has been publicly corrected, but the network user or network service provider nevertheless publishes the uncorrected information.

Article 14: If the injured party reached an agreement with a network user or network service provider whose act constituted an infringement wherein one party pays remuneration and the other party provides the service of deletion, masking, severing of the links, etc., the people's court shall find such agreement to be invalid.

If, without authorisation, specific network information is altered, deleted or masked or others are denied access to such information through the severance of the links thereto and the network user or network service provider that published such information requests that the tortfeasor bear tort liability, the people's court shall uphold such request. If such act was carried out at the request of another, the party that made the request and the party that carried out the request shall bear joint and several liability.

Article 15: Where others are employed, organised or instigated to, or assist another in, publishing or forwarding network information that infringes the personal rights and interests of another and the injured party requests that the authors of the act bear joint and several liability, the people's court shall uphold such request.

Article 16: Where a people's court renders a judgment ordering the tortfeasor to bear liability by extending a formal apology, eliminating the effect or restoring the injured party's reputation, etc., the same shall be consistent with the specific method of infringement and the scope of the effect caused thereby. If the tortfeasor refuses performance thereof, the people's court may proceed by reasonable means such as publishing an announcement online or publishing the judgment, with the expenses arising therefrom borne by the tortfeasor.

Article 17: If a network user or network service provider infringes the personal rights and interests of another, causing a property loss or serious emotional distress and the injured party requests that the network user or network service provider bear the liability for compensation pursuant to Article 20 or 22 of the Tort Liability Law, the people's court shall uphold such request.

Article 18: The reasonable expenditures made by an injured party to halt the infringement may be deemed a property loss as specified in Article 20 of the Tort Liability Law. Reasonable expenditures include the reasonable expenses incurred by the injured party or his/her/its appointed agent in investigating the infringement and gathering evidence. The people's court may, based on the request of the concerned party and the specific circumstances of the case, count the lawyers' fees that comply with the regulations of the relevant state authority as part of the compensation.

Where the property loss caused the injured party as the result of the infringement of his/her/its personal rights and interests or the benefits derived by the tortfeasor as a result thereof are impossible to determine, the people's court may, based on the specific circumstances of the case, determine a measure of damages of up to Rmb500,000.

The measure of damages for emotional distress shall be determined based on Article 10 of the Supreme People's Court, Interpretation on Several Issues Concerning the Determination of the Liability for Compensation for Emotional Distress Arising from Civil Torts.

Article 19: Once these Provisions are implemented, they shall apply to cases at first instance and appeal currently pending before people's courts.

These Provisions shall not apply where a case was final before the implementation hereof, or where, after the implementation hereof, a party applies for a retrial or a decision for retrial is made pursuant to the trial supervision procedure.