TMT Industry Legal Dynamics (Q1 2023/Issue 23)
Preface
The TMT industry has developed rapidly worldwide in the past decade, with globally renowned brands such as Google and Amazon, as well as rapidly emerging internet giants such as Alibaba and Tencent. While shopping on Amazon and chatting on WeChat, one may even be able to catch a glimpse of various popular dramas on iQiyi. It is no exaggeration to say that the TMT industry has integrated into every aspect of people's daily lives. In recent years, artificial intelligence, blockchain, cloud computing, and big data have surged, and the second half of the Internet era represented by ABCD has arrived, which will profoundly change people's lifestyles and work styles.
The continuous emergence of new technologies and industries poses strong challenges to existing regulations and rules, and countries are constantly formulating various laws and regulations to comply with technological innovation. China has also introduced a large number of laws, regulations, rules, and normative documents, promoting the development of the TMT industry on the one hand, and strengthening supervision of the TMT industry on the other hand to seek benefits and avoid harm.
Yang Chunbao's legal team has been deeply concerned about the development of the TMT industry and the latest trends in related legal regulation since the beginning of this century, and has provided various types of legal services to many TMT companies. In order to help practitioners, investors, and followers of the TMT industry understand the latest policies, regulations, and judicial practices related to the industry, we will update the legal updates of the TMT industry on a quarterly basis. We welcome your attention.
Internet information services, E-Commerce
1
Internet information services
Notice on Further Improving the Service Capability of Mobile Internet Applications
On February 27, 2023, the official WeChat account of the Ministry of Industry and Information Technology issued a notice on the further improvement of mobile internet application service capabilities by the Ministry of Industry and Information Technology.
The Notice focuses on 26 measures such as APP installation and uninstallation, service experience, personal information protection, demand response, industry collaborative and standardized development, and upstream and downstream joint prevention and governance. The notice clearly states that the installation program should obtain the consent of the user, the webpage should not automatically or forcibly download the application, and should not maliciously obstruct the user from uninstalling the application. The closing button of the screen opening and pop-up information window should be clear and effective, and the service matters should be notified in advance. The startup and operation scenarios should be reasonable, and automatic renewal and renewal services should obtain the user's consent and be notified to the user 5 days before the automatic renewal. The notice also requires strengthening personal information protection, establishing customer service hotlines to properly handle user complaints, implementing the main responsibility of app developers and operators, strengthening platform distribution management, such as app listing review and on shelf app inspection, standardizing SDK application services, and strengthening the responsibility of access enterprises.
Notice on Conducting Self-inspection and Rectification of Compliance in Internet Marketing Promotion for Sales Personnel of Insurance Institutions
The China Banking and Insurance Regulatory Commission has issued a notice on conducting self inspection and rectification of internet marketing compliance among insurance institution sales personnel (hereinafter referred to as the "notice"), and has decided to deploy a 3-month self inspection and rectification of internet marketing compliance among insurance institution sales personnel starting from April 3, 2023.
The Notice requires insurance institutions to conduct a comprehensive self inspection of the establishment and implementation of relevant management systems and responsibilities at all levels of institutions, including whether they have established qualifications, training, content review, and behavior management systems for sales personnel in internet marketing promotion; Whether to establish a compliance commitment mechanism for sales personnel's internet marketing promotion; Are sales personnel required to file information related to self media accounts and marketing promotion content; Is there a good management of self media account testing for sales personnel. In addition, the Notice also requires investigation of sales personnel publishing illegal or inappropriate information on self media, including publishing product introductions, sales policies, and marketing activities that have not been uniformly produced by the organization; Publish content such as company image, insurance services, and promotional concepts that have not been approved or authorized by the company; Violating commitments to gain or bear losses, or promising to give customers insurance premium rebates or other benefits beyond those stipulated in the insurance contract.
Notice on Carrying out the Special Action of "Clear and Rigorous Rectification of 'Self media' Chaos"
On March 12, 2023, the Central Cyberspace Administration issued a notice stating that from now on, a two month special action will be launched to "clean and strict rectification of 'self media' chaos".
This targeted action focuses on key platforms such as social media, short videos, and online live streaming, targeting prominent issues such as self media rumors, counterfeiting, and illegal profits. The main task is to combat the dissemination of rumors, harmful information, and false information by "self media"; Ban the "self media" that counterfeit official institutions, news media, and specific personnel; Rectify illegal profit-making behaviors such as self media hyping, attracting followers, creating hot blog traffic, and using vulnerable groups to monetize traffic.
Measures for the Administration of Internet Advertising
On February 25, 2023, the State Administration for Market Regulation announced the "Management Measures for Internet Advertising" (hereinafter referred to as the "Management Measures"), which will come into effect on May 1, 2023. The "Interim Measures for the Administration of Internet Advertising" (hereinafter referred to as the "Interim Measures") issued on July 4, 2016 shall be abolished simultaneously.
Specifically, first of all, the "Management Measures" have removed the refinement of the extension of the definition of internet advertising and removed the list of types included in internet advertising in the "Interim Measures". Secondly, the "Management Measures" further clarify the definitions of internet advertising publishers and internet information service providers. In addition, the "Internet Management Measures" have refined the advertising regulatory rules in key areas such as "soft text advertising", internet advertising with links, bidding ranking advertising, algorithm recommendation advertising, using internet live streaming to publish advertising, and disguised advertising that requires review; Clearly prohibit advertisers and publishers from influencing one click closure, deceiving, misleading users to click on, or browsing advertisements; Clarify the obligation of advertisers, advertising operators, and advertising publishers to verify the relevant advertising content in the next level link; Clearly define the responsibilities and obligations that live streaming related entities should bear in accordance with the law; Clearly, advertisers should release their own internet advertising files for a period of no less than three years. Moreover, the "Management Measures" have removed the relevant provisions on programmed purchase of advertisements and added regulations on the jurisdiction of advertising spokespersons.
Regulations on Administrative Law Enforcement Procedures of the Cyberspace Department
On March 23, 2023, the National Internet Information Office announced the "Regulations on Administrative Law Enforcement Procedures for Cyberspace Departments" (hereinafter referred to as the "Regulations"), which will come into effect on June 1, 2023.
The "Regulations" have comprehensively revised the "Regulations on Administrative Law Enforcement Procedures for Internet Information Content Management", standardized the administrative law enforcement procedures of the network information department, including specific procedural requirements for multiple links such as jurisdiction and application, filing, investigation and evidence collection, review, decision, delivery, execution, and closure, and stipulated that the network information department should record the entire process in written, audio-visual, and other forms in accordance with the law, archive and preserve it; Improve the avoidance system, hearing system, and parties' statements and defenses system; Clarify the legal review procedures; Clarify the collective discussion and decision system for major punishment cases; Specify the deadline for handling administrative penalty cases by the network information department and the specific circumstances of the closure of the case.
2
E-Commerce
Measures for the Supervision and Administration of Online Operation of Cosmetics
On March 31, 2023, the National Food and Drug Administration issued the "Measures for the Supervision and Administration of Online Operation of Cosmetics" (hereinafter referred to as the "Measures"), which will come into effect on September 1, 2023.
The "Measures" clearly define the scope of application as engaging in online cosmetics business within China, providing cosmetics e-commerce platform services, and supervising and managing them. Clarify that cosmetic e-commerce operators include cosmetic e-commerce platform operators, platform based cosmetic operators, and e-commerce operators who operate cosmetics through self built websites and other online services. For e-commerce platform operators, it is required to establish cosmetic quality and safety management systems such as real name registration, daily inspections, illegal behavior suppression and reporting, and complaint reporting. For cosmetic operators on the platform, they should fulfill the obligations of incoming inspection, product information display, risk control, problem product recall, product storage and transportation, establish a system of incoming inspection records, disclose cosmetic information, and cooperate with the platform to carry out inspections.
Network/Data Security
1
Network Security
Opinions on Implementation of Network Security Service Certification
The State Administration of Market Supervision, the Office of the Central Internet Security and Informatization Commission, the Ministry of Industry and Informatization and the Ministry of Public Security issued and implemented the Implementation Opinions on the Certification of Internet Security Services (hereinafter referred to as the Implementation Opinions) on March 15, 2023.
The Implementation Opinions contains nine items, which specify that the network security service certification directory at this stage includes such service categories as detection and assessment, security operation and maintenance, security consultation and grade protection assessment. The Opinions require the certification authority of network security services to carry out the certification work according to the certification entrustment proposed by the certification client and the basic specifications and rules of network security services certification, establish a traceable working mechanism to record the whole process of certification, and disclose the certification fee standard and the status of validity, suspension, cancellation or revocation of the certification certificate, And submit the implementation of network security service certification and certification certificate information according to relevant regulations.
Measures for the Administration of Network and Information Security in the Securities and Futures Industry
On February 27, 2023, the China Securities Regulatory Commission issued the "Measures for the Administration of Network and Information Security in the Securities and Futures Industry" (hereinafter referred to as the "Measures"), which came into effect on May 1, 2023.
The Measures consist of eight chapters and seventy-five articles, covering relevant entities such as core institutions, operating institutions, information technology system service institutions, and operators of key information infrastructure for securities and futures. They cover the supervision and management system for network and information security in the securities and futures industry, the operation of network and information security, personal information protection for investors, emergency response for network and information security, and the security protection of key information infrastructure The promotion and development of network and information security, supervision and management, and legal responsibilities have been put forward. The Measures urge industry institutions to establish and improve network and information security management systems and mechanisms, and determine that the main responsible person is the first person responsible for network and information security work in core institutions and operating institutions, with members of the leadership team or senior management in charge of network and information security work as the direct responsible person. At the same time, it is clarified that core institutions and operating institutions shall not force customers to agree to collect their personal biometric information.
2
Information/Data Security
Standard Contract Measures for Personal Information Exit
On February 22, 2023, the National Internet Information Office announced the "Standard Contract Measures for Personal Information Exit" (hereinafter referred to as the "Measures"), which will come into effect on June 1, 2023.
The Measures have a total of 13 articles, which apply to situations where personal information processors provide personal information overseas by entering into a personal information export standard contract with overseas recipients, and are accompanied by a Personal Information Export Standard Contract. The Measures stipulate that personal information processors who provide personal information overseas through the formation of standard contracts shall simultaneously meet the following conditions: (1) non critical information infrastructure operators; (2) Processing personal information for less than 1 million people; (3) Since January 1 of the previous year, a total of less than 100000 individuals have provided personal information overseas; (4) Since January 1 of the previous year, a total of less than 10000 individuals have provided sensitive personal information overseas, and a personal information protection impact assessment should be conducted. Within 10 working days from the effective date of the standard contract, the record should be filed with the local provincial network information department.
Information Security Technology - Certification Requirements for Cross border Transmission of Personal Information (Draft for Soliciting Opinions)
On March 16, 2023, the Secretariat of the National Information Security Standardization Technical Committee issued the "Certification Requirements for Cross border Transmission of Personal Information in Information Security Technology" (draft for soliciting opinions) (hereinafter referred to as "Certification Requirements"), soliciting opinions from the society as of May 15, 2023.
The 'Certification Requirements' apply to certification agencies conducting personal information protection certification for cross-border provision of personal information by personal information processors. The standards are clear, and personal information processors and overseas recipients conducting cross-border personal information processing activities should sign a legally binding and enforceable document that specifies at least 11 standards. Both parties should designate a person in charge of personal information protection, establish a personal information protection mechanism, and agree and jointly abide by the same rules for cross-border personal information processing.
Telecommunications
Regulations on the Reporting and Handling of Illegal Acts in the Telecommunications Industry
On March 13, 2023, the Ministry of Industry and Information Technology announced the "Regulations on the Reporting and Handling of Illegal Acts in the Telecommunications Industry" (hereinafter referred to as the "Regulations"), which will be implemented from June 1, 2023.
The Regulations mainly stipulate the relevant systems for accepting and handling reports of illegal activities in the telecommunications field: firstly, they clarify the acceptance requirements. The informant is required to submit reporting materials and relevant evidence when submitting a report, and is responsible for the authenticity of the materials provided to prevent malicious reporting. The conditions for acceptance and the circumstances of rejection are also specified in detail. Secondly, improve the handling procedures. Divide the processing process into two basic stages: preliminary review and investigation. Furthermore, the telecommunications regulatory authority is required to classify and handle the situation based on the investigation within 60 days from the date of receiving the report. Finally, refine processing requirements such as response and transfer. After the telecommunications regulatory authority completes the process, it shall respond to the real name whistleblower.
Notice on Several Reform Measures for the Network Access License System of Telecommunication Equipment
On February 6, 2023, the website of the Ministry of Industry and Information Technology announced the "Notice on Several Reform Measures of the Telecommunications Equipment Network Access License System" (hereinafter referred to as the "Notice").
The Notice mainly clarifies the following five contents: 1. Adjust the regulatory methods for some telecommunications equipment. 11 kinds of telecommunication equipment, such as fixed telephone terminals, cordless telephone terminals, fax machines, data machines, will no longer accept and approve new network access permit applications; Incorporate satellite internet devices and functional virtualization devices into the current network access license management. 2.Simplify and optimize the network access permit detection project. In the pre detection phase of network access permission, cancel the network access detection projects that are less related to telecommunications security and interconnection, such as the environmental adaptability and power reliability of mobile phones. 3. The commitment time limit for network access permit approval is generally 15 days. 4.Extend the validity period of the network trial approval to 2 years. 5、 Implement product family management for telecommunications equipment.
Culture and Media
Opinions of the Ministry of Culture and Tourism on Promoting the High Quality Development of the Online Tourism Market
On March 24, 2023, the website of the Ministry of Culture and Tourism announced the "Opinions on Promoting the High Quality Development of the Online Tourism Market" (hereinafter referred to as the "Opinions").
The Opinion mainly includes four aspects: overall requirements, work priorities, regulatory measures, and support and guidance. It emphasizes that online tourism platform operators should strengthen content security review and strengthen the qualification review of platform operators; Improve the safety production management system and emergency response plan, and conduct risk monitoring and safety assessment on the tourism products or services listed on the shelves; Strengthen the protection of sensitive personal information of tourists and prevent the collection of personal information beyond reasonable business needs; Strengthen the monitoring, detection, judgment, and disposal of illegal and irregular products such as unauthorized travel agency business activities and "unreasonable low price travel"; Reasonably determine service fees such as payment and settlement, platform commission, etc., negotiate and fully communicate with platform operators on an equal basis, drive and support the development of platform operators, and reduce the operating costs of platform operators.
[1] The three major industries of Technology, Media, and Telecommunications are collectively referred to as the "TMT" industry by industry insiders. Corresponding to the national standard for industry classification of China's national economy, it roughly covers industries such as software and information technology, the Internet, culture and entertainment, telecommunications, and broadcasting and television.
[2] This part is from the WEIKO Legal Database
Author
Lawyer Yang Chunbao
First level lawyer
Senior partner of Dentons (Shanghai) Law Firm
Email:
chambers.yang@dentons.cn
The leader of the private equity and investment fund professional group of Beijing Dacheng (Shanghai) Law Firm, the leader of the TMT industry group, the deputy director of the Science, Technology, Culture, Leisure and Entertainment Professional Committee of Dacheng China, and the member of the Shanghai foreign-related legal talent pool. Bachelor of Law from Fudan University (1992), Master of Law from Sydney University of Science and Technology (2001), and Master of Law from East China University of Political Science and Law (2001).
Lawyer Yang has been practicing for 28 years and has been engaged in legal services for private equity, investment and financing, and mergers and acquisitions, covering industries such as TMT, big finance, big health, real estate and infrastructure, exhibition industry, and manufacturing. Since 2004, he has been repeatedly recommended or commented on by The Legal 500 and Asia Law Profile. Since 2016, he has been selected as one of the "100 Outstanding Lawyers in Chinese Business" by the internationally renowned legal media China Business Law Journal, and has been awarded the title of "China's Annual Corporate Law Expert" by Leaders in Law -2021 Global Awards; Ranked in the recommended list of excellent lawyers and law firms recommended by the First China Famous Enterprise Law Association; Received multiple awards such as the "China TMT Lawyer Award" and "China Mergers and Acquisitions Lawyer Award" by Lawyer Monthly and Finance Monthly. Qualified as an independent director of a listed company, he is a part-time professor at the School of Law at East China University of Science and Technology, a part-time supervisor at the School of Law at Fudan University, a part-time graduate supervisor at East China University of Political Science and Law, a lecturer in the private equity CEO class at Shanghai Jiao Tong University, and a lecturer in the multinational business talent training class at the Shanghai Municipal Commission of Commerce. Published 16 monographs, including "Operation and Case Analysis of Full Process Legal Risk Prevention and Control of Enterprises", "Wansheng Capital 2: Complete Operation Guide of Corporate Investment and Financing Mode Process", and "Operation Practice of Risk Prevention and Control of Private Equity Investment Funds". Lawyer Yang's practice fields include: companies, investment mergers and acquisitions and private equity funds, capital markets, TMT, real estate and construction engineering, as well as dispute resolution in the above fields.
Author
Lawyer Suntian
Partner of Dentons (Shanghai) Law Firm
Email:
sun.zhen@dentons.cn
Prior to his practice, Sun has successively served as the president or executive assistant to vice presidents in the global, Asia Pacific or China regions in Fortune 500 companies such as Watts, Ingersoll Rand and Alcatel Lucent, and has accumulated rich experience in enterprise operation and management, and has excellent bilingual communication and coordination capabilities in both Chinese and English. Lawyer Sun published Private Equity Investment Fund Risk Prevention and Control Operation Practice and published dozens of articles in the fields of mergers and acquisitions, funds and e-commerce. Lawyer Sun is good at private equity investment, enterprise mergers and acquisitions, e-commerce and labor legal affairs.
Author
Li Jiaxin
Dentons (Shanghai) Law Firm Intern
Fudan University Law School Students
PE&TMT Lawbridge
Presiding lawyer: Yang Chunbao, first-class lawyer
Phone/WeChat: 1390 182 6830
Business contact and submission email:
chambers.yang@dentons.cn
Address: 9/24/25/F, Shanghai World Financial Center, 100 Century Avenue, Shanghai
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