Translation: Rules Regarding the Adjudication of Civil Disputes Involving the Utilization of Information Networks to Infringe Upon Personal Rights and Interests
Rules Regarding the Adjudication of Civil Disputes Involving the Utilization of Information Networks to Infringe Upon Personal Rights and Interests(Judicial Interpretation No. 11 , Adopted at the 1,621 meeting of the Supreme People's Court Adjudication Committee on June 23, 2014)
The "Rules Regarding the Adjudication of Civil Disputes Involving the Utilization of Information Networks to Infringe Upon Personal Rights and Interests" were adopted at the 1,621 meeting of the Supreme People's Court Adjudication Committee on June 23, 2014 and are hereby promulgated and shall become effective from October 10, 2014.
Supreme People's Court
These Rules are hereby formulated in accordance with the "Civil Law," "Tort Law," "National People's Congress Standing Committee Decision Regarding Strengthening the Protection of Network Information," "Civil Procedure Law," and other laws and regulations to correctly adjudicate civil disputes involving the utilization of information networks to infringe personal rights and interests and unify trial practice.
Article 1. As used in these Rules, civil disputes involving the utilization of information networks to infringe personal rights and interests refers to disputes arising out of the utilization of information networks to infringe the rights of personhood including rights of name, reputation, honor, image, and privacy.
Article 2. People's Courts where the infringing action took place or where the defendant resides shall have jurisdiction over lawsuits arising out of the utilization of information networks to infringe personal rights and interests.
The place where the infringing action took place shall include the location of the computer or other terminal equipment used by the defendant to carry out the infringing behavior. The location where the infringing behavior's outcome occurs shall include the residence of the infringed upon party.
Article 3. People's Courts shall accept cases where the plaintiff brings an action against an Internet user or an Internet service provider under Clauses 2 and 3 of the Article 36 of the Tort Law.
If a plaintiff only sues an Internet user, and the Internet user requests that an Internet service provider suspected of infringment be added as a co-defendant or third party, the People's Court shall allow it.
If a plaintiff only sues an Internet service provider, and the Internet service provider requests that a verifiable Internet user be added as a co-defendant or third party, the People's Court shall allow it.
Article 4. When a plaintiff sues an Internet service provider, and the Internet service provider offers the defense that allegedly infringing information was published by an Internet user, the People's Court may, in accordance with the particular circumstances of the plaintiff's request and the case, order the Internet service provider to provide the People's Court the name (alias), contact information, IP address, and other information of any verifiable Internet user suspected of infringement.
If an Internet service provider does not provide the information without justifiable reason, the People's Court may impose fines or similar measures on the Internet service provider in accordance with Article 114 of the Civil Procedure Law.
If a plaintiff requests to add an Internet user as a defendant based on the information provided by an Internet service provider, the People's Court shall allow it.
Article 5. In accordance with Clause 2 of Article 6 of the Tort Law, if an infringed party issues a notice including the following information to an Internet service provider either in writing or by a means publicized by an Internet service provider, the People's Court shall deem it effective:
1. Notifying party's name (alias) and contact information; and
2. The Internet address with respect to which measures must be taken or information sufficient to determine the infringing content; and
3. Relevant information regarding the reason the notifying party is demanding deletion.
If an infringed party's notice does not satisfy the foregoing conditions and an Internet service provider maintains that it is exempt from liability, the People's Court shall rule in favor of the Internet service provider.
Article 6. When determining whether an Internet service provider adopted measures to delete, block, or delink in a timely manner, a People's Court shall make an overall judgment based on such factors as the nature of the Internet services, the manner and degree of precision of an effective notice, and the type and degree of harm to rights by the Internet information.
Article 7. If an Internet user claims that an Internet service provider should be held liable for breach of contract when the latter has taken measures to delete, block, or delink information they had published, and the Internet service provider offers the defense of having received a notification, the People's Court shall rule in favor of the Internet service provider.
If an Internet user whose content has been the object of measures such as deletion, blockage, or delinking requests that the Internet service provider disclose the content of the notice, the People's Court shall support the request.
Article 8. Where a notice issuer's notice causes an Internet service provider to adopt measures to delete, block, or sever links in error, and the Internet user who was the object of the measures requests the notifying party bear responsibility for infringement, the People's Court shall support their request.
Where the Internet user who was the object of the measures requests the Internet service provider to take restoration measures, the People's Court shall support this request, except where technical limitations render restoration impossible.
Article 9. People's Courts shall consider the following factors when determining whether or not an Internet service provider had "knowledge" under Article 36, Clause 3 of the Tort Law:
(i) Whether the Internet service provider recommended, ranked, selected, edited, modified, revised, or otherwise processed the infringing online information using human or automatic means.
(ii) Whether the administrative functionality the Internet service provider should have implemented, as well as the nature of its service and the manner in which it was provided, increased or decreased the likelihood of infringement.
(iii) The type and degree of obviousness of the personal rights and interests the online information infringes.
(iv) The degree of social impact or the browsing volume in a given time frame of the online information.
(v) The possibility that the Internet service provider could have adopted measures to prevent infringement and whether reasonable measures were adopted.
(vi) Whether the Internet service provider adopted reasonable measures with respect to repeated infringements by the same Internet user or the same infringing information.
(vii) Other factors relevant to the case.
Article 10. People's Courts shall consider the following factors when determining the existence and degree of fault for republication of online information by an Internet user or Internet service provider:
(i) the duty of care that the republishing party bears relative to their nature and degree of influence;
(ii) the degree of obviousness that the republished online information would infringe upon the personal rights of third parties;
(iii) whether the republished information was materially revised or whether the title of the article was added revised in such a way as to make it likely that readers would be severely misled with respect to its content.
Article 11. Where a business operator requests that an Internet user or Internet service provider bear tort liability because an Internet user or Internet service provider has engaged in libel or other forms of defamation that damages the public's trust in a business operator or decreases the public's valuation of its products or services, the People's Court shall support their request in accordance with the law.
Article 12. Where an infringed party requests that an Internet user or Internet service provider bear tort liability for using the Internet to publicize an individual's genetic information, medical history data, health examination data, criminal record, home address, personal life or other personal private or individual information resulting in harm to said party, the People's Court shall support the request except in the following circumstances:
(i) the individual has consented in writing to the disclosure and its scope;
(ii) the disclosure and its scope are in the public interest;
(iii) the disclosure is made public interest institutions such as schools and scientific research bodies with the written consent of the individual and the method of publication does not allow the identification of specific individuals;
(iv) information made available online by the individual themselves or other personal information that is made public legally;
(v) personal information obtained through legal channels;
(vi) where otherwise provided by laws or administrative regulations.
Where a rights holder requests that an Internet user or Internet service provider bear tort liability for either publicizing information set forth in Clauses 4 or 5 above in a manner that is contrary to the public interest or social mores, or publicizing information that infringes upon an individual's important interest that is worthy of protection, the People's Court shall support their request.
This clause shall not be applied to state agencies that publicize personal information pursuant to the exercise of their official powers.
Article 13. Where an Internet user or Internet service provider publishes information, the origin of which is a document produced by a government agency as part of its official duties or the official actions conducted in public, with the result being an infringement of the personal rights of an individual, the People's Court shall support the request of the infringed party that the infringing party bear tort liability if one of the following circumstances exists:
(i) the information published by the Internet user or the Internet service provider is not consistent with the original information;
(ii) the Internet user or Internet service provider adds insulting content, defamatory information, in appropriate titles, or use the addition or removal of information, alteration of the structure, or changing the order to lead people to misunderstand;
(iii) the information from whence the aforementioned information originated was publicly corrected, but the Internet user refuses to provide an update or the Internet service provider does not allow updating;
(iv) the information from whence the aforementioned information originated was publicly corrected, but the Internet user still publishes the pre-correction information.
Article 14. People's Courts shall hold invalid any agreement between an infringed upon party and an Internet user or an Internet service provider whereby one party agrees to pay compensation and the other party agrees to provide deletion, blocking, or de-linking services.
Where someone unilaterally distorts, deletes, or blocks specific online information or uses de-linking to prevent others from obtaining online information, and the Internet user or Internet service provider that published the information requests that the infringer bear tort liability, the People's Court shall support their request. Where someone acts as an agent to carry out the foregoing behavior, the agent and the principal shall bear joint liability.
Article 15. People's Courts shall support a request from an infringed party that anyone employing, organizing, abetting, or assisting others to publish or republish online information that infringes upon the personal rights of others bear joint liability.
Article 16. Where a People's Court rules that an infringing party shall undertake formal steps to make a formal apology, take counteractive measures, or restore someone's reputation, it shall correspond to the scope of the impact of the specific infringement. Where an infringing party refuses to carry it out, the People's Court may undertake reasonable measures to execute the ruling including publishing notices online and publishing the judgment document, and the fees arising therefrom shall be borne by the infringing party.
Article 17. Where an Internet user or Internet service provider infringes upon the personal rights and interests of another resulting in property damage or severe mental anguish, and the infringed requests they bear liability in accordance with the provisions of Article 20 and Article 22 of the Tort Law, the People's Court shall support their request.
Article 18. The reasonable expenses incurred by an infringed party in the course of curbing infringing activity may be deemed to be property loss under Article 20 of the Tort Law. Reasonable expenses shall include reasonable fees incurred by the infringed party or their agents in conducting investigations of infringing behavior and obtaining evidence. People's Courts may, on the basis of a request from the infringed party and the specific circumstances of the case, also include lawyer fees in the compensation calculation, provided they conform to the rules set by relevant state agencies.
If it is not possible to determine the amount of property loss suffered by an infringed party or the amount of illegal benefit obtained by the infringing party, the People's Court may, in accordance with the specific circumstances of the case, award a compensation amount of 500,000 yuan or less.
The amount of compensation for mental anguish shall be determined in accordance with Article 10 of the Supreme People's Court Explanation Regarding Certain Questions Relating to Determining Compensation Liability for in Civil Tort Cases Involving Mental Anguish."
Article 19. Following their implementation these Rules shall be utilized by the People's Courts in the adjudication of all first and second instance trials.
These Rules shall not be applied in cases where a final judgment has been rendered prior to their implementation, or where a party files a request for a retrial or a decision is issued pursuant to post-judgment supervision procedures after their implementation.