- New Internet rules could affect more than 700 million Chinese online
- Beijing not about to block all foreign, non-permit-holding content
- Foreigners may publish online with a Permit-holding Chinese partner
False advertising in Shanghai’s Pudong Airport? (Creative Commons)
On Thursday, March 10, new rules governing the Internet in China go into effect. Those rules could affect the nation’s more than 700 million citizens online. The new rules were announced on February 13 by China’s Ministry of Industry and Information Technology and the State Administration of Press, Publication, Radio, Film and Television (SARFT), both of which fall directly under the control of the Communist Party’s ruling State Council. Called the Online Publishing Services Management Rules, the Rules define and regulate “online publishing services” and “online publishing” so broadly that it would seem that all online content that can be viewed/heard/perceived within the territory of China would be covered under this king-size blanket document. And when I say “all” content, I mean all—as in, text, photo, games, audio, video. (The classic China law-drafting catch-all is also present: the Rules also include the term “other categories” of works that may be later identified by the Government as also falling under the new Rules purview (Art. 2(4)).)
To engage in such “online publication”—which exercise also should be aimed generally at “serving the people and Socialism” and promoting “socialist values and morals” (Art. 3)¬one must obtain an “Online Publishing Service Permit.” The Permit cannot be obtained by a Wholly Foreign Owned Entity (WOFE) or any type of joint venture, neither equity nor cooperative—collectively known as Foreign Owned or Invested Entities (a.k.a. FIEs). The Permit must be applied for with SAPPRFT and by an entity in China that, among other things, will conduct “supervision and management over the content and quality” of the online content (Art. 36). Finally, there is a slew of vague prohibitions over the “content” of “online publications,” the list of which, interestingly enough, matches those set out in Article 25 of the “Film Administrative Regulations”, better known to many as the “Censorship Provisions,” promulgated by the State Council way back in 2002.
So, while there has been an incredible amount of hand-wringing and kneejerk reaction to the Rules of late—I myself have received several, literally hyperventilated, WeChat audio inquiries into what this all means for China’s Internet—it does not seem as though the government is about to start shutting down or suddenly blocking all foreign, non-permit-holding content that may be viewed in China, but is simply reiterating concerns about the same things it’s always been concerned about. If we take a step back, it might also be pointed out that it is still illegal in China for a Foreign Invested Entity to engage in the “operation of news websites, online publication services, online audio and video program streaming services…” (italics added) , seemingly shutting the door completely on FIEs that wish to publish online—all this according to the Foreign Investment Catalogue, Prohibited Category, Section XI-31. The new Rules, on the other hand, actually expressly allow for a “cooperation” of FIEs (or foreign individuals) with Permit-holding Chinese entities to engage in online publication in China (Art. 10).
To clarify, I’m surely not implying that the Rules are a grand step forward for FIEs in the China online publishing space (to wit, it’s not even clear what “cooperation” really means in the present context). But, the Rules should also surely not be understood as a sudden draconian measure to pull the plug on all foreign(er)-produced online content.
Of course, and as is the case with many of China’s laws, the actual effect of the Rules will surely only be determined by the manner and degree of rigorousness in enforcement by the Government (or its lack thereof). But other than citing the Rules in order to justify the shutting down of a website for posting content that might be seen as directly or indirectly harming Communist Party sovereignty, the Rules will much more likely persist in something of a state of limbo.
As an analogy, too, this confusing situation is quite reminiscent of the state in which foreign law firms operate. That is, foreign law firms’ representative offices in China basically may not handle matters that involve questions of Chinese law. With the many foreign law firms that are operational in China and thriving, the prohibition of practicing Chinese law is something of running joke within many a foreign office. But, just like the publishing of online content, could the government suddenly shut it all down? Sure, but will it? Not gonna happen.
—Jesse J. Weiner is an Associate in the Los Angeles office of Stroock, Stroock & Lavan. He has served as an adjunct professor at the Renmin University School of Law in Beijing and guest lecturer at the Beijing Film Academy. Prior to joining Stroock, Weiner was a partner at Yingke Law Firm in Beijing, where he also worked for the American Bar Association.
