CAC issued draft regulations: Cyberspace protection of minors is on agenda November 2016 CAC issued draft regulations: Cyberspace protection of minors is on agenda November 2016 1 On September 30, 2016, the Cyberspace Administration of China (the "CAC") issued the draft for comments of the Regulations on Cyberspace Protection of Minors (the "Draft"). A "Minor" is not defined in the Draft, but defined under the Minor Protection Law as any citizen under the age of 18. The term "citizen" is likely to be interpreted as a citizen of China. However, in the Guidelines for Personal Information Protection within Information Systems for Public and Commercial Services on Information Security Technology (the "Guidelines"), the same term is defined as anyone under the age of 16. Though not legally binding, the Guidelines is a set of important rules that set forth the most comprehensive standards on the protection of personal information in China. It may be used as a reference to judicial decision-making. In light of the difference in the interpretation of the term "minor", to be on the safe side, it is best to proceed with the definition with greater coverage, i.e., 18 years old, while keep in mind that in court the alternative is possible. If the Draft becomes final in its current form, it may impose significant regulatory requirements upon Internet information service providers. WARNING OF POTENTIALLY HARMFUL INFORMATION Any organization or individual that produces, publishes, and disseminates the following information unsuitable to minors in the cyberspace is required to provide apparent warnings prior to such production, publishing, and dissemination: a) Information that may induce minors to exercise misconducts such as violence, bullying, suicide, self-harm, sexual contact, vagrancy, begging, etc.; b) Information that may induce minors to consume substances not suitable for their consumption, such as tobacco and alcohol; c) Information that may induce minors to be wary of studying, to be cynical, feeling self-inferiority, fear, or depression; and d) Other information that may negatively impact the physical or mental health of minors. Those Internet information service providers that provide Internet platform services have an obligation to review any information on its platform. The Draft define "Internet information service provider" as organizations and individuals that provide information technology, information services, information products via the Internet, including service providers of Internet platforms and Internet contents and products. When the above categories of information are identified, measures must be taken to warn viewers prior to browsing. In addition, if the Internet information service providers that provide Internet platform services find any information on its platform that is in breach of laws, regulations, and departmental rules, they should take measures to filter, delete, or block such information, and report the breach to the relevant government authority in charge of such matters. FILTER SOFTWARE The Draft encourages the R&D, manufacturing and promotion of minor cyberspace protection software. Where Internet access is provided in schools, libraries, cultural centers, and youth palaces, it is required to install such software. All intelligent terminal products ("ITP", defined as network end products that may connect into the Internet, have operational systems, and allow users to autonomously install applications by themselves. To our understanding, this is the equivalent of "smart devices") should either install such software prior to selling to end users (domestic ITP manufacturers pre-install it, and importers of ITPs install it before distributing in China), or they should facilitate the installation of minor protection software, and inform users about installation channels and methods in a CAC issued draft regulations: Cyberspace protection of minors is on agenda 2 Hogan Lovells remarkable manner. Failure to both install such software and facilitate the installation and inform users in a remarkable manner may lead to a fine between RMB 100,000 to 500,000. The Draft did not address a key question in these provisions: whether the filter software must be designated by the Chinese government, or whether it can be developed or selected freely by hardware developers/distributors. Based on existing laws, regulations, and departmental rules, most information that may potentially harm minors is already required to be filtered out, such as contents containing pornography, gambling, and anti-government materials. As a result, the goals of these provisions may seem somewhat confusing to some stakeholders, including a large number smart device manufacturers and software developers in China. In 2009, the Chinese government attempted to install Green Dam filter software, to all new computers for minor protection. Green Dam became very controversial because its functions were not well defined, and it may be used for censoring purposes. Later the mandatory requirement to install Green Dam was abandoned by the Chinese government. However, it must be pointed out that it was in the revisions of the Minor Protection Law that a related stipulation was introduced, namely: "The State encourages research and development of internet products that are conducive to the healthy growth of minors and promotes the use of new technologies for preventing minors from internet addiction." Though Green Dam was halted, this provision has been added to the Minor Protection Law since 2006 (effective since 2007). To the very least, tech companies dedicated to selling ITPs in China, domestic or foreign-invested alike, may opt to only facilitate and provide notices and instructions for installation rather than to preload ITP products with filter software themselves, and it shall be sufficient for them to satisfy their obligations. However, what is deemed as "facilitate the installation of minor protection software", or "inform users about installation channels and methods in a remarkable manner" is still open for interpretation. PERSONAL INFORMATION PROTECTION In terms of minors' personal information protection, the Draft requires those who collect and use minors' personal information to provide apparent warning notices, provide source, content, and usage of the information, and obtain consent from minors or their guardians. A specific set of collection and usage rules must be designed by the Internet information service providers to enhance the protection of minors in cyberspace. Internet information service providers who provide search services must not violate this requirement and display search results containing personal information of minors. If a minor or his or her guardian demands the Internet information service provider to delete or block any personal information in the cyberspace, the Internet information service provider must take necessary measures to delete or block as requested. The minors' personal information is defined under the Draft as each kinds of information electronically or otherwise recorded, can be used alone or combined with other information to identify the identities of minors, including but not limited to minors' name, location, address, date of birth, contact information, account name, identification card number, personal biological identification information, portraits, etc. This open-ended definition does not differ significantly from the general definition of personal information under other Chinese laws, regulations, and guidelines, though the general definition also includes the following: password, status of income and assets, health status, consumption status, ethnicity, political opinions, religious beliefs, or any information that may reveal not only the location but also the time of data subjects. CAC issued draft regulations: Cyberspace protection of minors is on agenda November 2016 3 ONLINE GAMING Online game providers are required to register players' true identity, and identify those who are minors. They must also establish and improve game rules that prevents minors from being addicted to games, and must alter the technology if it may induce addictions. Between midnight to 8:00am each day, online game providers must prohibit minors from playing. They must also limit the total and daily game time of minors. Here it may be hard to define what can or cannot "indulge in network addictions". Similarly, potentially harmful information also lacks a standard. However, it is worth noting that this is not the first time this type of language appears. In the Minor Protection Law, Article 19 and Article 33 have already required parents (guardian) and the State, respectively, to be responsible for taking measures to stop minors from "indulging in network addictions". The Advertising Law also prohibits advertisements on mass media about online games which are harmful to minors. What the Draft is trying to accomplish now may be considered trying to materializing the more abstract stipulations in the Minor Protection Law. The Draft set out the following liabilities: if an online gaming fails to register a minor's identity or to take measures against addictions, they may first receive a warning to rectify within a period of time; if they fail to rectify, they will face a fine between RMB 50,000 and 500,000, and it may be combined with suspension or termination of online gaming services; under severe circumstances, their license to operate in online gaming, Online Cultural Operational License, may be suspended. The interpretation of these terms may need further clarification from the Cyberspace Administration of China (it may also come jointly from the Ministry of Industry and Information Technology), or better illustration from specific cases, after the final Draft's issuance. The Draft's solicitation of opinions ended on October 31, 2016. It is unknown when it will be passed. 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