Provisions of the Supreme People's Court on Several Issues concerning the Application of Law to Trial of Civil Dispute Cases of Infringement of Personal Rights via Information Networks

Fa Shi [2014] No.11

August 21, 2014

Provisions of the Supreme People's Court on Several Issues concerning the Application of Law to Trial of Civil Dispute Cases of Infringement of Personal Rights via Information Networks, passed at the 1621th meeting of the Judicial Committee of the Supreme People's Court on June 23, 2014, are hereby announced for implementation as of October 10, 2014.

Provisions of the Supreme People's Court on Several Issues concerning the Application of Law to Trial of Civil Dispute Cases of Infringement of Personal Rights via Information Networks

(Passed at the 1621th meeting of the Judicial Committee of the Supreme People's Court on June 23, 2014)

For the purpose of correctly hearing civil dispute cases of infringement of personal rights via information networks, Provisions of the Supreme People's Court on Several Issues concerning the Application of Law to Trial of Civil Dispute Cases of Infringement of Personal Rights via Information Networks (hereinafter referred to as the "Provisions") are hereby formulated in combination with judicial practices and in accordance with the General Principles of Civil Law of the People's Republic of China, the Tort Law of the People's Republic of China (hereinafter referred to as the "Tort Law"), the Decision of the Standing Committee of the National People's Congress on Strengthening Network Information Protection, and the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the "Civil Procedure Law") and other laws.

Article 1 For the purpose of the Provisions, civil dispute cases of infringement of personal rights via information networks refer to dispute cases of infringement of others' personal rights such as the right of name, right of reputation, right of honor, right of portrait and right of privacy via information networks.

Article 2 A litigation instituted against the infringement of personal rights via information networks shall be governed by the people's court at the place of relevant tort or at the place where relevant defendant domiciles.
Places where a tort is conducted include the location of terminal equipment such as the computer where the alleged tort is conducted, while places where infringement results occur include the domicile of the infringed person.

Article 3 If a plaintiff prosecutes a network user or provider of network services in accordance with Paragraphs 2 and 3 of Article 36 of the Tort Law, the people's court shall accept the case.
If a plaintiff only prosecutes a network user but the network user requests to add the provider of network services suspected of tort as co-defendant or a third party, the people's court shall allow such request.
If a plaintiff only prosecutes a provider of network services but the provider of network services requests to add a network user able to be determined as co-defendant or a third party, the people's court shall allow such request.

Article 4 If a plaintiff prosecutes a provider of network services and the said provider defends for the reason that the information suspected of tort is published by a network user, the people's court may, according the requests of the plaintiff and concrete conditions of the case, order the provider of network services to provide it with the information of the network user certainly suspected of tort such as the name, contact information and IP address.
If the provider of network services refuses to provide such information for no proper reason, the people's court may take measures such as punishments against the provider of network services in accordance with Article 114 of the Civil Procedure Law.
If the plaintiff requests to add the network user as a defendant according to the information provided by the provider of network services, the people's court shall allow such request.

Article 5 According to Paragraph 2 of Article 36 of the Tort Law, if a notice sent by the infringed person to a provider of network services in writing or by means publicized by the provider of network services includes the following contents, the people's court shall deem the notice to be valid:
1. the name and contact information of the notifier;
2. IP address against which necessary measures are required to be taken or relevant information sufficient to determine infringing contents; and
3. reasons for the notifier to require deletion of relevant information.
If the notice sent by the infringed person does not meet the abovementioned conditions and the provider of network services claims exemption from liability, the people's court shall support such claim.

Article 6 The people's court shall, according to Paragraph 2 of Article 36 of the Tort Law, comprehensively judge whether a provider of network services takes necessary measures such as deletion, shielding and link breaking in time or not, as per factors like the nature of network services, the form and accuracy of effective notice and the type and degree of infringement of rights by network information.

Article 7 Where a network user, against whose published information measures such as deletion, shielding and link breaking are taken, claims that a provider of network services shall bear the liability for breach of a contract or tort, if the provider of network services defends for the reasons of receiving a notice, the people's court shall support.
If the network user, against whom measures such as deletion, shielding and link breaking are taken, requests the provider of network services to provide contents of the notice, the people's court shall support such request.

Article 8 Where a provider of network services wrongly takes measures such as deletion, shielding and link breaking due to a notice of notifier, if the network user, against whom measures are taken, requests the notifier to bear the liability for tort, the people's court shall support such request.
If a network user, against whom measures are taken wrongly, requests the provider of network services to take corresponding restoration measures, the people's court shall support such request, unless restoration is unavailable due to restrictions of technical conditions.

Article 9 The people's court shall comprehensively consider the following factors in identifying whether a provider of network services "knows" facts pursuant to Paragraph 3 of Article 36 of the Tort Law:
1. whether the provider of network services recommends, ranks, selects, edits, sorts out or modifies infringing network information in an artificial or automatic way;
2. the capacity of information management which the provider of network services shall have, the nature and method of provision of services as well as probability of incurring infringement;
3. the type and degree of infringement of personal rights by the network information;
4. the social influence of the network information or page views of the information in a certain time;
5. the technical possibility of taking infringement prevention measures by the provider of network services and whether the provider of network services takes corresponding reasonable measures;
6. whether the provider of network services takes corresponding reasonable measures against the repeated tort of the same network user or the same infringement information; and
7. other factors related to the case.

Article 10 The people's court shall comprehensively consider the following factors in identifying the fault and its degree of reproduction of network information by a network user or provider of network services:
1. the duty of care undertaken by reproduction subject suitable to the nature and scope of influence of reproduction;
2. the degree of infringement upon personal rights of any other person by reproduced information; and
3. whether any substantial amendment is made to reproduced information, or the title of relevant article is added or altered, and the probability of severe inconformity to contents of the article and misleading the public.

Article 11 Where a network user or provider of network series damages the trust of the public in a business subject and reduces the social evaluation of products or services thereof by means of slander, defamation or other means, if the said business subject requests the network user or provider of network series to bear the liability for tort, the people's court shall support such request.

Article 12 Where a network user or provider of network services makes to the public the personal privacy of a natural person such as gene information, data of medical records, data of physical examination, criminal records, home address and private activity and other personal information by virtue of networks, damaging the person, if the infringed person requests the network user or provider of network services to bear the liability for tort, the people's court shall support such request, except for the following circumstances:
1. the information is made public upon the written consent of the natural person and within the scope agreed;
2. the information is made public for the purpose of promoting social public interests and within the necessary scope;
3. the information is made public by schools, scientific research institutions, etc. for the purpose of academic research or statistics, based on public interests, upon the written consent of the natural person, and in a way unable to identify the specific natural person;
4. the information made to the public by the natural person himself on networks or other legally public personal information;
5. the personal information obtained through a legal channel; and
6. otherwise stipulated by the laws or administrative regulations.
If a network user or provider of network services makes to the public the personal information specified in Items 4 and 5 of the preceding paragraph in a way in violation of social public interests and social morality or infringing upon material interests worthy of protection of obligee, and the obligee requests the network user or provider of network services to bear the liability for tort, the people's court shall support such request.
If a state organ exercises its functions and powers to make any personal information to the public, this article hereof shall not apply.

Article 13 Where the information, published by a network user or provider of network services according to the information sources such as instruments prepared by a state organ according to its functions and powers and functions and powers publicly implemented by the state organ, involves in any of the following circumstances and infringes upon personal rights of any other person, if the infringed person requests the infringer to bear the liability for tort, the people's court shall support such request:
1. the information published by the network user or provider of network services does not conform to contents of the aforesaid information sources;
2. the network user or provider of network services incurs misleading by means of adding any insulting content, defamatory information or improper title, adding or deleting any information, adjusting structure, or changing the order of contents;
3. the aforesaid information sources have been corrected publicly, but the network user refuses corrections or the provider of network services does not make corrections; and
4. the aforesaid information sources have been corrected publicly, but the network user or provider of network services still publishes the information before corrections.

Article 14 If the infringed person and the network user or provider of network services constituting tort conclude an agreement, under which one party pays remunerations and the other party provides services such as deletion, shielding and link breaking, the people's court shall deem the agreement to be invalid.
Where the specific network information is arbitrarily altered, deleted or shielded or any other person is prevented from obtaining network information in the way of breaking link, if the network user or provider of network services publishing the said information requests infringer to bear the liability for tort, the people's court shall support such request. If the said act is committed upon entrustment by any other person, the principal and the agent shall bear joint liabilities.

Article 15 Where a person is employed, organized, solicited or helped to publish or forward network information which infringes upon personal rights of any other person, if the infringer person requests doer to bear joint liabilities, the people's court shall support such request.

Article 16 If the people's court awards that infringer shall bear liabilities such as apology, elimination of influence or restoration of reputation, the liabilities shall be equivalent to the concrete way of infringement and scope of influence. If the infringer refuses to bear liabilities, the people's court may enforce the award in a reasonable way such as making an announcement on the network or publishing relevant judgement document, at the cost of the infringer.

Article 17 Where a network user or provider of network services infringes upon personal rights of any other person, incurring property losses or serious mental impairment, if infringed person requests the network user or provider of network services to bear compensation liabilities pursuant to Articles 20 and 22 of the Tort Law, the people's court shall support such request.

Article 18 Reasonable expenditures paid by the infringed person for restraining a tort may be recognized as property losses set out in Article 20 of the Tort Law. Reasonable expenditures include reasonable expenses paid by the infringed person or entrusted agent for the investigation and evidence collection for a tort. According to the request of a party concerned and details of a case, the people's court may include the lawyer's fees in conformity with provisions of relevant departments of the state into compensation scope.
If the property losses incurred by infringement upon personal rights of the infringed person or benefits obtained by infringer therefrom cannot be determined, the people's court may determine a compensation amount below CNY500,000 according to details of the case.
The compensation amount of mental damages shall be determined in accordance with Article 10 of Interpretations of the Supreme People's Court on Several Issues concerning the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts.

Article 19 After the implementation hereof, the Provisions shall apply to the case under the first or second instance of the people's court.
The Provisions shall not apply to the case for which final instance has been conducted before the implementation hereof, but a party concerned applies for retrial or retrial is determined according to trial supervision procedures after the implementation hereof.