People’s Republic of China is implementing a substantial reform in order to prevent foreign firms and joint ventures operating in the media industry in the Country to publish directly original contents and adapted works online.

BACKGROUND

On the mainline of the constitution, in 2014, of the Central Leading Group for Internet Security and information, under the control of the standing committee of the Chinese Communist Party, President Xi Jinping declared – as an explanation and justification of the reasons standing behind the norm – that “we should respect the right of every Country to choose own approach in the internet governance”.

The “Regulation for the Management of Online Publishing Services” – announced on February 13th, 2016 and in force since from March 10th 2016 – substitutes the “Temporary Regulation on the Management of Online Publishing”, which took effect after the entry of China in the World Trade Organization in 2001.

CONTENTS AND INFLUENCE

II.1. The recipients: online publishers

First of all, it is important to frame the recipients and contents of the reform.

The answer to the first query seems to be contained, reading the norm’s statements, within the Regulation in the chaptered named “The publishing entities”. The main question we faced to go deeply in our research was: are we analyzing a media sector reform, or even the single person posting on social networks his Monday-morning mood is subject to the regulatory renewal?

No reply is provided by the text of the Regulation, which seems to presume the existence of an “Article 0” quoting: “Pursuant to this Regulation, publisher means…” etcetera. However, it is deductible – with an opposite logic – from the text of the articles disciplining in detail the new normative requirements, that the reform concerns solely enterprises, companies, agencies whose core business is “publishing”. So the main recipients of this reform are the online publishing professional agencies. Besides, it would appear excessive the case in which the Government would claim that each WeChat user willing to post his or her weekend-by-the-seaside pictures or every bicycle company representative aiming to publish online its catalogue for advertisement should obtain professional publishing licenses and administrative clearances.

Article 8 of the Regulation, in fact, states that “The publishing entities of books, audio, electronics, newspaper and periodicals shall meet the following conditions before providing network publishing services: (i) there are definite publishing platforms like website domain and intelligent terminal applications for network publishing; (ii) there is a definite network publishing service scope; (iii) there is the necessary technical equipment of network publishing service, and relevant servers and storage devices must be maintained within the territory of the PRC”, reprising a definition already found in another norm, the “Regulation on the Administration of Publication” and clarifying all doubts referring to subject and object of the norm: “publishing entities include newspaper offices, periodical offices, book publishing houses, audio and video product publishing houses and electronic publication publishing houses, etc.”. In other words, both the “subjective” and “objective” scopes (and with the latter we find the answer to the second query we asked in the opening of this paragraph) of the norm are determined by designating at once the entities and the kinds of works subjected to the reform.

Article 9 delves deeper into the topic: “In addition to the conditions under Article 8, other entities shall also meet the following conditions before providing network publishing services:[…]”. An incorrect interpretation of “other entities” in terms of “non-online publishers” would drag in the regulatory scope every entity not being a professional media. “Other entities”, for logical reasons, legal analogy (the abovementioned Regulation on the Administration of Publications), as well as for matters of relations among Art. 8 and Art. 9, shall be, instead, serenely intended as “entities willing to become online publishers”.

II.2. Personal limitations

The current regulation gives the mentioned kinds of enterprises the right of publishing such works without any territorial limits and without the need for specific authorizations. The reform Regulation, though, on one hand (first part of Article 10), provides that “Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures and foreign invested companies shall not engage in online publishing service”; on the other hand (second part of the same Article) states that domestic content providers, should they want to cooperate with foreign companies or joint ventures, foreign individuals or other overseas entities, shall ask for the specific approval of the State Administration for Press, Publications, Radio, Film and Television not only in order to publish, but also to constitute future partnerships. The second part of Article 10 quotes: “Where the online publishing service unit cooperates with Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures, foreign invested companies foreign organizations and foreign individual in the online publishing service project, it shall obtain the approval from the State Administration of Press, Publication, Radio, Film and Television”.

Another important focal point of the reform, in order to strengthen the control on the object of online publications, is represented by the need of special licenses for domestic operators willing to publish content online. The public organ in charge for issuing such licenses is, once again, the State Administration for Press, Publications, Radio, Film and Television. According to Article 7 of the Regulation, indeed: “Engaging in online publishing services shall be approved by the administrative department of publication and obtain the “online publishing service license”.

II.3. Checks and censorship.

The normative reform, then, gives the task to local governments to regularly monitor the publishers and make annual inspections. Those activities have to be considered as part of the national security policies and as a State policy on the safety checks.

Authorized publishers, moreover, are now obliged to keep their servers and the storage systems physically in the Chinese territory (Article 12, no. 7). Publishers are obliged, in particular, to practice self-censorship. An extensive interpretation of Article 24 could mean a lot in terms of freedom of expression of thought so that the meaning to be attributed to “self-censorship” here, in particular, is abstaining from:

a) publishing anything that might undermine national unity, sovereignty and territorial integrity;

b) disclosing state secrets, in a way that might endanger national security, or undermine the honor or the interests of the Country;

c) inciting ethnic hatred or racial discrimination, or going against ethnic customs and habits;

d) spreading rumors, disturbing social order or undermining social stability;

e) insulting or slandering others, or infringing upon others rights;

f) endangering social morality or the national cultural traditions.

III. Reactions

As easily predictable, the announced reform gave birth to contrasting reactions in the public opinion. Among them, Stephan Ezell – Vice-president of the United States Information Technology and Innovation Foundation – declared that “the Chinese market, in the last 15 years, always moves one step forward and two steps back; every time PRC aims to open up, it turns back and introduces a new barrier as a countermove”, while Xu Yi held that “this norms establish a legal ground with which the Government can manage newly opened websites in China, and it’s not aimed to shutting already existing and approved ones”. Zhang Zhian – Director of a Northern University of Communications in China – then, declared: “China is still focused on maintaining social stability and national security, rather than on the commercial and individual interests”.

CONCLUSIONS

The most balanced and appreciable opinion, according to us, is the one for which, if it’s true that this regulation moves a step forward to the ultimate establishment of the Rule of Law, and if it’s true that the news basically regard prohibitions concerning crimes – so already covered by the criminal code – it is understandable, however, the worries of the foreign observers determining the careful look to the next and crucial phase of the law implementation.

The scope and impact of the reform are, indeed, still not very clear. As obvious, it will be necessary to wait for the factual application of the norm making clear the wideness of the new regulation and its practical effects.

Disclaimer
This article is intended solely for informational purposes and does not constitute legal advice. Although the information in this article was obtained from reliable official sources, no guarantee is made with regard to its accuracy and completeness.

Copyright 2016

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