Editor's note: While the Internet offers great opportunities for businesses due to the extensive range of customers, copyright piracy is a global challenge for content providers. In addition to protecting their own content, businesses are also challenged by the protection of customer data in today's online world. How do rights holders effectively protect copyrighted works in China? Given the fact that in China most websites do not have a formal privacy policy, how do Internet users expect the Chinese legal framework to protect their personal privacy?

Richard W. Wigley, a consultant of King & Wood's IP Litigation Group in Beijing, gives a comparison of laws and practices in China and the United States on copyright enforcement and privacy protection over the Internet.

China Business Weekly has published the article in the past weeks. Wigley gave an introduction to China's copyright protection and online data privacy protection situation in previous parts of the article. Below is the last part of it and he will compare website security policies between the United States and China.

Some minor changes have been made to the author's original article for editorial purposes. The views expressed here are the author's own.

Website security policies/user verification

There have been high profile lawsuits in the United States, such as Julie Doe v. MySpace, in which social networking websites have been sued over the inappropriate actions of its users. In the Doe case, a minor was allegedly sexually assaulted by a fellow user of MySpace who had allegedly provided false information in his online profile. The case was, however, dismissed, as MySpace was not deemed the "publisher" of the information and was given immunity under the Communications Decency Act.

Websites are not totally exempt from the actions of its users and must, however, provide certain controls. This includes user verification that the user is 18 years of age or older. This is seen as a way of protecting minors from inappropriate or sexually oriented content. Though there are other means of protecting minors, such as requiring credit card verifications and the use of "adult passwords", such as those used on adult-oriented websites, the US Supreme Court in Reno v. ACLU found that these security measures were of limited value and constrained online activities.

To date, China has no specific laws relating to protecting minors on the Internet, though the Law of the People's Republic of China on the Protection of Minors does provide regulations regarding the "disclosure of the personal secrets of minors", as well as protecting minors from "products of pornography, violence, wanton killing and terror that are pernicious to minors". Given the significant level of Internet and mobile phone usage by minors in China, it is likely that many of the principles outlined in the above-noted Law will soon be incorporated into forthcoming regulations for personal privacy, as they relate to online activities in China.

Protection from libel and defamation

The right to privacy includes the right to be free from libelous/defamatory statements and slander. In China, the right to be protected from such statements is noted in Article 101 of the General Principles of Civil Law.

In the United States, libel and defamation are defined under the common law of torts, while the Communications Decency Act protects ISPs from Libel/Defamation claims based on the improper comments of its users.

Recent US court decisions have cited the Communications Decency Act and subsequently provided protection to online service providers from the tortuous activities of users (for example, see the case of Zeran v. AOL). The users themselves are the "publishers" of the works and, as such, bear liability. If, however, the online service provider exercises any editorial control over the content, it could be held liable for any significant revisions.

Similarly in China, the "publisher" of the content will ultimately bear liability under the provisions of the Services Procedures and the Civil Law, though the online services provider would still be required to "takedown" the illicit content upon knowledge of its existence.

China has a sound constitutional basis for protecting the privacy of individuals in their interactions over the Internet. To date, there exists a collection of laws and regulations which have primarily been focused on protecting Internet users in China from having access to inappropriate content. With the much-anticipated enactment of the new personal privacy law, it is likely that an increased focus will be placed upon protecting the personal data of individuals as they communicate online.

Conclusion

In a 2007 speech, Chinese President Hu Jintao implored government officials that "[w]e should spread more information that is in good taste and promote online products that can represent the grand Chinese culture," according to a Xinhua report. Content providers are motivated to develop content when they believe that it will be protected and Internet users will only make online transactions when they believe that their personal data is safe. China's copyright protection regime is well-developed and working today to protect rights owners, while personal data privacy in China will improve significantly if a comprehensive legal framework is put in place in the near future.

(China Daily 12/22/2008 page9)