[co-author: Sherry Zhao]
For the past several years, the Cyberspace Administration of China (the “CAC”) has risen to a very important status among the Chinese national government’s agencies. However, it lacks a specific procedural law to empower it with specific enforcement actions. Against this background, the CAC issued the Provisions on Administrative Law Enforcement Procedures for Internet Information Content Management (《互联网信息内容管理行政执法程序规定》) (the “Provisions”) on May 2, 2017, more than one year after the CAC released its draft measures for public comments. The Provisions will become effective on June 1, 2017, the same effective date as the Cybersecurity Law of the People’s Republic of China (“PRC”).
The Provisions were formulated pursuant to the Cybersecurity Law of the PRC and the Administrative Penalty Law of the PRC. The Provisions are the first procedural regulations in the realm of internet information and many of its provisions warrant attention.
A. Regulatory Authority
The Provisions vest in the CAC and its local branches administrative enforcement power regarding unlawful acts related to internet information content.
B. Jurisdiction
The Provisions stipulate four types of jurisdiction to resolve potential disputes and conflicts among the internet information content administrative authorities at all levels:
1. Territorial Jurisdiction
Article 6 of the Provisions reaffirms the provision in the Administrative Penalty Law of the PRC that administrative penalties will be enforced by the internet information content administrative authority where unlawful acts occurred. Such unlawful acts may be deemed to have occurred at the place where:
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the website is filed
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the operator is registered with the Administration for Industry and Commerce ( in case of any discrepancy between principal place of business with the registered place, the former shall apply)
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the website is hosted
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the operator or user is located
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the internet is accessed
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the computer server or facilities are located.
2. Level Jurisdiction
The Provisions stipulate that the internet information content administrative authorities at all levels are responsible for the jurisdiction of—and cases regarding—illegal activity within that authority’s administrative region. A higher-level internet information content administrative authority may directly handle cases under the jurisdiction of its lower-level branch, and it may also transfer cases under its own jurisdiction to the lower-level branch.
3. Transfer of Jurisdiction
When internet information content administrative authorities discover that cases do not fall under their jurisdiction, they must promptly transfer the cases to competent authorities that have jurisdiction.
4. Designated Jurisdiction
The jurisdiction will be designated under the following circumstances:
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When jurisdictional powers are subject to a dispute that cannot be resolved through consultation, then such dispute will be reported to the higher-level authority, which will designate jurisdiction; or
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When the lower-level internet information content administrative authorities cannot exercise jurisdictional powers over cases under their jurisdiction because of special reasons, they may request a higher-level authority to take over or re-designate jurisdiction.
C. Scope of Evidence and Interpretation of Electronic Data
According to the Provisions, the scope of evidence includes electronic data, audiovisual materials, written evidence, material evidence, witness testimony, statements by the parties, appraisal opinions, investigation reports, inspection records, on-the-spot records, inquiry records, and so on.
The Provisions broadly define “electronic data”. The term includes all data that is stored, processed or transmitted digitally in the process of the case, including web pages, blogs, microblogs, instant messaging tools, forums, post bars, network disks, e-mails, network backgrounds, and so on. Recorded sound material and video material stored in electronic media are also “electronic data”.
D. Protection of the Rights and Interests of the Parties Involved
In order to fully protect the rights and interests of relevant enterprises and individuals, the Provisions expressly entitle the parties of the cases to certain rights:
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each party’s right to petition for withdrawal of the responsible official in charge of the case if he/she has an interest in the case that may affect the fairness of the case;
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each party’s right to make a statement and plead his/her case according to the law before and after the administrative penalty decision;
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each party’s right to request for a hearing when such party’s license to provide internet news information service is revoked or such party is fined a large amount;
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each party’s right to request administrative appeal or file an administrative lawsuit according to the law if such party objects to the administrative penalty decision.
E. Standardization of Administrative Law Enforcement Procedures
In order to standardize law enforcement procedures, the Provisions include templates of 17 types of documents normally used in administrative penalties formulated by the CAC. These templates include Approval Form for Filing, Written Decision of Administrative Penalty, Report on Case Handling, Record of Hearing or Inquiry, and so on. Internet information content administrative authorities at all levels may refer to the form and model of these documents to standardize the administrative enforcement procedures.
F. Supervision of Administrative Law Enforcement
The Provisions require internet information content administrative authorities at all levels to establish and constantly improve law enforcement training, examinations, assessments, qualifications, and seniority management structures. Law enforcement personnel may only engage in law enforcement work after obtaining a law enforcement certificate. Such certificates are uniformly produced, approved, and issued by the CAC, or issued and approved by authorized provincial-level internet information content administrative authorities.
G. Interview Before Making Administrative Penalty Decision
The Provisions stipulate that internet information content administrative authorities may carry out “interviews” of internet information service providers according to relevant regulations before making administrative penalty decisions. Such an “interview” is a new creation, which is not found in the Administrative Penalty Law of the PRC. The CAC issued Provisions on the Interview of Entities Providing Internet News Information Services (《互联网新闻信息服务单位约谈工作规定》) (the “Interview Provisions”) in 2015. The Interview Provisions authorize the CAC and its local branches to interview relevant persons in charge of the internet news information service providers in case of serious violations of the laws. The interviewees must promptly rectify according to requirements proposed by the CAC and its local branches during the interview. Interviewees who do not meet the requirements of rectification would be given administrative penalties such as warnings, fines, rescission of licenses, and so on.
However, such an “interview” does not fall into any type of administrative penalty formulated under the Administrative Penalty Law of the PRC. It is a procedure added by the CAC before the administrative penalty. The Interview Provisions are silent on what types of procedural rights the interviewees enjoy if they object to the interview or the requirements proposed by the authority during the interview.
The scope of the jurisdiction of the Provisions is internet information content, which is a broader concept than internet news information under the Interview Provisions. People in the industry are hoping that there will be more detailed procedural rules for an “interview” in other realms of internet information to detail the interview process and requirements under the Provisions.
H. Observation
As the first procedural regulation specifically focusing on the implementation of internet information content administration, the Provisions will further standardize and legitimize the administrative law enforcement activities in internet information content administration. However, there are still uncertainties about some of the administrative actions, such as “interviews,” in what circumstances such interviews can be carried out, and what rights and obligations these “interviewees” have.
