ISP Liability: China's internet court said Wechat is not obliged to disconnect portal to a Mini-Program upon notification of copyright infringing content

Since its first release in 2011, Wechat has expanded from a messaging app into a colossal ecosystem in which users could use the app to order cinema tickets, book a car, read news, pay for electricity bills and much more.  Readers may recall a Times article that a begger in China has before him not a bowl but instead a QR code, indicating the evolution of China into a cashless online society. In 2017, Wechat launched a new functionality called the Mini-Programs, which amounts to an app within an app, in which public account holders could run a program accessible via the Wechat portal without a separate download. The Mini-Programs runs in parallel with the Wechat app and can open a separate webpage of online games or e-Commerce shops. There are now over one million Mini-Programms built on the Wechat platforms covering over 200 industries.

What is the position of ISP copyright liability for this giant platform? The basic principle can be traced back to Article 36 of the PRC Tort Law enacted in 2010, which states that in the event of infringement, the right owner could complain to the ISP ("notification") and request that it takes necessary actions such as deleting the content, screening, de-linking, etc ("deletion").  If the ISP fails to take necessary action after being put on notice, it shall be jointly liable with the direct infringer on the additional part of infringement. This is known as the safe-harbour principle as the ISP is not automatically liable before the notification.

Alas the safe harbour is not so safe.  In 2013, the PRC Regulations on the Protection of Rights to Information Network Communication (Regulations) set out exceptions.  Staying inside the safe harbour also does not mean a quiet life.  The notification + takedown procedure often means that an ISP is caught in the middle of numerous disputes between right owners and alleged infringing users, and whichever decision it comes to, one side is not going to be happy.

The Daodou v Baizan and Wechat case clarifies the boundary in the case of an ISP which offers an access service without control of the underlying content. The Hanghzou Internet Court finds that there are different categories of ISP as recognised in Articles 20 to 23 of the Regulations, namely ISP which provides network access service, cache services, information storage, searching, or linking services. The different types of ISP have different degree of editing rights over the content, and therefore their liabilities should also be different. In case of fundamental network services such as that providing access services, the ISP does not have control over the information transmitted by users, and does not have any ability or power to interfere with the content.  Providers of fundamental network services charge users in accordance with the level of technical services provided, and not in accordance with the content. The Court finds that Article 20 of the Regulations exempts such ISPs from damages liability, and extends to interpret that there is no deletion obligation. The "notice + takedown" procedure in Article 14 to 16 is obligated only on ISPs which provide storage, searching, list ranking, or linking services. The Court further states that the definition of "network service provider" in Article 36 of the PRC Tort law should not include this type of ISPs, though it would have other monitoring obligations under the Cyber Security Law such as that against gambling, pornography, or terrorist activities. Applying this analysis, the Court found that Wechat is not liable because it does not store nor have access to the server of the Mini-Programs developer to examine or delete the infringing contents.

The judgment has not yet become effective pending possible appeal.  It is certainly a breaking news for certain classes of ISP, as the argument that it does not have access nor control over specific infringing content seems to be a viable defence against joint liability.  For the IP owners, however, it means the option of online takedown procedure may not be as effective as one would hope, as it is natural for ISP to avoid disruption to its services.

Admittedly the author reads this Chinese court judgment on her Wechat on the same day it was released, and will continue to monitor the update by spending more time on screen.  In the past Chinese judgments often take days to be served on the defendant via post, and lawyers have to decipher a smudged date stamp painstakingly in order to work out the deadline for appeal.  "No more!"  I typed.