China Media & Entertainment Law Report : China Media Lawyer & Attorney : Reed Smith Law Firm : Entertainment, Sports & Consumer Rights Law

On March 30, the State Administration of Radio, Film and Television (“SARFT”) issued a new regulation, entitled “Notice on Strengthening Content Management of Online Audio-Video Programs” (“Notice”), that established licensing requirements for films, TV series, cartoons, and documentaries that are to be broadcast via the Internet. The Notice also set forth a list of 22 types of audio-video programs that online program service providers would be required to remove in a timely manner. Privately owned online program service providers are not prohibited from applying for licenses. However, licensing requirement provisions may be difficult to enforce because approval procedures may end up being too time consuming given the demand from users for timely content.

The Notice supplements the “Provisions on Administration of Internet Audio-Visual Programs” (“Provisions”) that were issued by SARFT and the Ministry of Information Industry (formerly the Ministry of Industry and Information Technology) on December 20, 2007. The Provisions required all online audio and video service providers to apply for an “online Audio-Visual Broadcasting License.” According to reports from Guangzhou Daily, in April 2008, 23 online audio-visual websites were among the first group to receive licenses under the Provisions. In December 2008, SARFT released a list of 332 online audio-visual websites that had been granted licenses. At present, almost all of the privately-owned online audio-visual websites that enjoy industry clout (e.g., www.tudou.com, www.youku.com, and www.ku6.com) have received licenses. Some websites have been shut down due to a failure to obtain a license as required by the Provisions.

Online Audio-Video 22 Prohibitions

The Notice requires Online content providers to remove any content that can be deemed to:

1. maliciously misinterpret Chinese culture, history or historical facts, or maliciously misinterpret the history of other countries, disrespect human culture, or the cultures and customs of others;
2. intentionally disparage revolutionary leaders, heroes, important historical personalities, or famous Chinese or foreign literary works or important characters of such famous literary works;
3. maliciously disparage the image of the people’s army, armed police, public security bureau and justice organs, or contain content about maltreatment of prisoners or extraction of confessions through torture, etc;
4. display criminal aggression, disclose specific investigation methods or disclose the image or voice of reporters or witnesses when they should be protected, etc;
5. preach religious extremism, provoke conflicts between different religions, different branches of religions or between religious and non-religious individuals, or harm public sentiment;
6. propagate superstitious activities such as fortune-telling, etc;
7. adopt an ironic or mocking tone in describing natural disasters, accidents, terrorist incidents, wars or other disasters;
8. graphically display promiscuous behavior, rape, incest, necrophilia, sexual perversion, etc;
9. display or imply sexual behavior or details related thereto;
10. intentionally display sexual organs;
11. contain suggestive sexual content;
12. contain content concerning extramarital affairs, sexual maltreatment or other related issues;
13. use “pornography” or other provocative words or pictures as video titles;
14. contain graphic murder scenes involving sexual activity, violence, suicide, kidnapping, drug use, gambling or other similar content;
15. contain scenes, subtitles, background music or audio effects that contribute to a sense of excessive horror;
16. graphically display content concerning the slaying or mistreatment of animals, or
17. capture and consumption of state-protected animals;
18. infringe upon individual privacy;
19. display fighting or abuse in an affirmative way;
20. preach a negative life outlook or worldview, or intentionally exaggerate backward tendencies among people or the dark sides of society;
21. contain scenes from films, television series or programs prohibited by SARFT;
22. violate the spirit of related laws and regulations.

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On May 19, the PRC Ministry of Industry and Information Technology (“MIIT”) issued a controversial regulation requiring all computer manufacturers to equip computers and PDAs manufactured in or shipped to China as of July 1 with “Green Dam Youth Escort” filtering software. The controversy, originating both from within China and abroad, included concerns over anti-trust, copyright infringement, and security and privacy issues. Despite efforts by MIIT to assure the public of the reasonableness of the regulation, it postponed implementation just prior to the July 1 deadline. In a mid-August press conference during which he acknowledged that the Green Dam launch had been mishandled, MIIT Minister Li Yizhong clarified that even though the software would not have to be installed on personal computers, it would still be mandated on school and Internet cafe computers.

The government sought to develop the Green Dam software to limit access to Internet content deemed “potentially damaging,” and to build on the government’s “Special Campaign to Restore the Internet from a State of Vulgarity.” Unlike previous methods of Internet censorship employed by the Chinese government which controlled content at the ISP and ICP levels, Green Dam, dubbed “The Filtering Bully” by Chinese Internet users, represented a new form of monitoring that linked computers and users directly to databases of prohibited sites and blocked access to prohibited addresses.

Some of the more prominent criticisms from sources such as Chinese legal experts, technology providers, international organizations, governments, and Internet users are summarized below.

1. Anti-trust complaints. Two Chinese law professors brought complaints to MIIT and the Anti-monopoly Committee stating that MIIT’s exclusive specification of Green Dam software represented a breach of China’s Anti-Monopoly Law (“AML”). The professors argued that the government abused its authority and excluded competition in violation of Articles 8, 32 and 37 of the AML to the extent it did not allow other software manufacturers to develop competitive filtering products.
2. Consumer rights violations.  Article 9 of China’s Consumer Protection Law provides that consumers have discretion in choosing products and services. Thus, pre-installation of Green Dam software breaches consumers’ rights to Internet filtering software options.   
3. Security and privacy. A University of Michigan analysis of Green Dam software revealed various security vulnerabilities, potentially allowing malicious sites to steal private data, send spam, or transform personal computers into “botnets,” which allow hackers to control computers installed with Green Dam. 
4. Copyright infringement. The authors of the University of Michigan study also suggest that a number of blacklisted files used by the Green Dam software were taken from the American-made censorship program CyberSitter. Other reports indicated that Green Dam lifted code libraries and configuration files from another software company. Solid Oak, a small US software company, said it had evidence to support a copyright infringement claim against Green Dam’s developers.
5. International trade concerns. The US government met with representatives of the Chinese government, notifying them of concerns with respect to potential international trade violations surrounding the implementation of the Green Dam regulation.

Regulators Crackdown on Google

The month of June also saw the government temporarily shut down some Google search functions after a report released by the China Internet Illegal Information Reporting Center indicated that Google China’s search engine contained “vulgar” online search results. Soon after the report was released, Google was the subject of intense public criticism including substantial television coverage from China’s central television station (“CCTV”). Industry followers and Chinese Internet users noted that similar search results could be found at any number of Google competitors, foreign and domestic. Mr.Li Kaifu, the president of Google’s China operations, was asked to meet with Chinese regulators to discuss this issue and develop solutions to the problem. Google promised to strengthen its control of “vulgar” online search results in China in order to assure compliance with PRC laws and regulations. 

Given the extent of coverage by the Chinese government and media on the issue of pornography and Internet use, and criticism directed at Google China’s management of Internet searches for pornographic content, we can expect more developments on the Green Dam/censorship front in the future.    This is not an easy issue for regulators from any country to tackle. China’s first major attempt at implementing regulatory measures at the consumer level did not work out as planned, but it probably won’t be the government’s last. Given the extent to which Google appeared to be singled out from some of its domestic competitors, foreign service providers and technology companies should be particularly sensitive to heightened oversight and potential investigations from PRC regulators. 

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