Archive for the 'legislation' Category

Wanna setup a Personal Website in China? BEING TAKEN A Portrait Please.

 

According to a new regulatory document (in Chinese) announced by the Ministry of Industry and Information Technology, a personal website owner have to BE TAKEN a portrait when she/he is about to “register” the basic information of their websites. The title of the new regulation is: The Scheme of Further Commitment of the Verification to the Websites’ Registration Information (Trial Implementing Regulations) [CN: 工业和信息化部关于进一步落实网站备案信息真实性核验工作方案(试行)]

 

“Registration” is a premising procedure for setting up a website in China.  The information required in the registration includes the domain name, the IP address of the hosting server, the brief introduction of the website’s intended content, the owner/operator’s true name and Chinese citizen ID number, address and other contacts. Although the regulation uses the term of “registration” but not “license”, it is actually a compulsive requirement for any websites. Without registration and the final permission from the Ministry of Industry and Information Technology, a website will be deemed as an “illegal” one and be shut down (China does have an Administrative License Law restricting the governmental organizations from establishing the administrative licenses arbitrarily, but this law is obviously being ignored, again).

 

Anyway, before the new regulation, the whole procedure of registration can, at least, be accomplished online, despite it normally needs weeks, or even more than a month in some cases, to get the license.

 

Now you have to schedule a travel for such registration in accordance with the new regulation. It requires the owners of the personal websites providing their own portrait in the form of registration. To avoid the false portrait, the website owners must present by person with their personal identificatoin documents (like resident ID card, or passport for foreigners), and BEING TAKEN PORTRAIT in the photographic studio (with unified equipped backdrop providing by the MiiT) located at the IDC’s office.

 

Here is the new procedure of the website registration for individuals:

 

Webmasters log on the registration system of the MIIT, and input the information

–> The IDCs or the ISPs (hosting service provider) verify the information 

–> If the informaiton is true (deemed by the ISPs)

–> the ISP send the notice of spot verification

–> Webmaster go to the verification center with ID documents

–> If the informaiton is true (deemed by the IDCs)

–> The ISPs or IDCs input the information and upload the portrait to the system

–> the provincial communication administration examine the registration information

–> If the informaiton is true (deemed by the administration)

–> the registration information will be submitted to the MiiT’s system finally

–> the Webmasters will get the permission of establishing the website.

 

Besides this new procedure, the regulation requires IDCs draw a plan on re-examination of the existing websites (means the websites has been registered beforehand) … it does not said explicitly that the owners of the existing websites also need to BE TAKEN portraits at the IDC’s studio, but leaves such possibility in the wordings.

 

My comments … speechless, speechless, and …  speechless. It seems more and more difficult to write legal blog posts refrained from grumbling.

 

BTW, another news. China’s President Jintao Hu was found established a micro-blog at People’s Daily’s twitter-like service  t.people.com.cn) yesterday.  And that micro-blog was symboled with a “verified real person” badge, and a line of bio stating his current position as the Party Chief and the President of China.

 

Then, in a dozen of hours, that zero-posted micro-blog got 20,000 followers.  Then the server was denied visiting just like being DDOSed. Then the service provider closed “Hu’s” microblog, and confessed that it does not established by President Hu. It is actually an automatically created page for the verified users in the BBS service of the People’s Daily. Hu has (perhaps been) registered an ID with his real name when he showed up for his first online chatting with netizens in 2008.

 

I wrote in a Chinese post said this “accident” proves, again, that, even if we forget the freedom of expression but aiming at locating the wrong-doers, the real-name registration system will be useless in the circumstance of the rapid developing technology and the constantly changing personal situation nowadays. On the contrary, the case that even our President would BE ESTABLISHED a blog without his consent demonstrates clearly what we need to focus on is not the real-name registration law, but the law of personal data protection, no matter it is associated with a real name or a false one.  The law of real-name registration system is based on the presumption of mistrust, and will increase such mistrust among the stakeholders. The law of personal data protection is based on the presumption of trust, and will decrease the misturst eventually.

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President Hu’s “verified real-name” micro-blog (screenshot, the page no longer exist).

Abstracts of the Chinese Posts at BlawgDog from Dec 3 to Dec 13

Seven Chinese posts have been posted to the Blawgdog from December 3rd to December 13th, 2009. Here are the brief one-sentence abstracts for the English readers’ reference:

HONG KONG Legal Resources on the Internet

  • The Laws of Hong Kong (BLIS)
    This has been the Bilingual Laws Information System (BLIS) on the Internet prepared and hosted by the Department of Justice of Hong Kong for free public access since November 9, 1997. BLIS contains the Laws of Hong Kong in both Chinese and English. Users can search and retrieve the ordinances and Sub-Legislation from BLIS. This service is free of charge.
  • Hong Kong Judiciary (Courts) Homepage Judgments delivered by various Hong Kong courts since 1993 are available on this web site

Government Information on the Internet


Background Information and News Resources on the Internet

Hong Kong Legislation on the Cyber Crimes

1. Laws against Hacking (Unauthorized Access, Access with Criminal Intent)
There are two offences under the laws of Hong Kong aiming at “Hacking” activities:-
Cap.106 S.27a – Unauthorised access to computer by telecommunication
Cap.200 S.161- Access to computer with criminal or dishonest intent

CAP 106 TELECOMMUNICATIONS orDINANCE
Section 27A – Unauthorized access to computer by telecommunications – 16/06/2000
Section Num:
27A
Version Date
16/06/2000
Heading
Unauthorized access to computer by telecommunications

(1) Any person who, by telecommunications, knowingly causes a
computer to perform any function to obtain unauthorized access to any
program or data held in a computer commits an offence and is liable on
conviction to a fine of $20000. (Amended 36 of 2000 s. 28)
(2) For the purposes of subsection (1)-
(a) the intent of the person need not be directed at-
(i) any particular program or data;
(ii) a program or data of a particular kind; or
(iii) a program or data held in a particular computer;
(b) access of any kind by a person to any program or data held in a
computer is unauthorized if he is not entitled to control access of the
kind in question to the program or data held in the computer and-
(i) he has not been authorized to obtain access of the kind in
question to the program or data held in the computer by any person who is
so entitled;
(ii) he does not believe that he has been so authorized; and
(iii) he does not believe that he would have been so authorized if
he had applied for the appropriate authority.
(3) Subsection (1) has effect without prejudice to any law relating
to powers of inspection, search or seizure.
(4) Notwithstanding section 26 of the Magistrates ordinance (Cap
227), proceedings for an offence under this section may be brought at any
time within 3 years of the commission of the offence or within 6 months of
the discovery of the offence by the prosecutor, whichever period expires
first.
(Added 23 of 1993 s. 2)

————–
CAP 200 CRIMES orDINANCE
Section 161 – Access to computer with criminal or dishonest intent – 30/06/1997
Section Num:
161
Version Date
30/06/1997
Heading
Access to computer with criminal or dishonest intent

(1) Any person who obtains access to a computer-
(a) with intent to commit an offence;
(b) with a dishonest intent to deceive;
(c) with a view to dishonest gain for himself or another; or
(d) with a dishonest intent to cause loss to another,
whether on the same occasion as he obtains such access or on any future
occasion, commits an offence and is liable on conviction upon indictment
to imprisonment for 5 years.
(2) For the purposes of subsection (1) “gain” (獲益) and “loss” (損失)
are to be construed as extending not only to gain or loss in money or
other property, but as extending to any such gain or loss whether
temporary or permanent; and-
(a) “gain” (獲益) includes a gain by keeping what one has, as well as
a gain by getting what one has not; and
(b) “loss” (損失) includes a loss by not getting what one might get,
as well as a loss by parting with what one has.
(Added 23 of 1993 s. 5)

2. Laws against Criminal Damage
Section 59 – Interpretation – 30/06/1997
Section Num:
59
Version Date
30/06/1997
Heading
Interpretation

PART VIII

CRIMINAL DAMAGE TO PROPERTY

(1) In this Part, “property” (財產) means-
(a) property of a tangible nature, whether real or personal,
including money and-
(i) including wild creatures which have been tamed or are
ordinarily kept in captivity, and any other wild creatures or their
carcasses if, but only if, they have been reduced into possession which
has not been lost or abandoned or are in the course of being reduced into
possession; but
(ii) not including mushrooms growing wild on any land or flowers,
fruit or foliage of a plant growing wild on any land; or
(b) any program, or data, held in a computer or in a computer
storage medium, whether or not the program or data is property of a
tangible nature.
In this subsection, “mushroom” (菌類植物) includes any fungus and “plant” (植物) includes any shrub or tree. (Replaced 23 of 1993 s. 3)
(1A) In this Part, “to destroy or damage any property” (摧毀或損壞財產) in
relation to a computer includes the misuse of a computer.
In this subsection, “misuse of a computer” (誤用電腦) means-
(a) to cause a computer to function other than as it has been established to function by or on behalf of its owner, notwithstanding that the misuse may not impair the operation of the computer or a program held in the computer or the reliability of data held in the computer;
(b) to alter or erase any program or data held in a computer or in
a computer storage medium;
(c) to add any program or data to the contents of a computer or of
a computer storage medium, and any act which contributes towards causing the misuse of a kind referred to in paragraph (a), (b) or (c) shall be regarded as causing it. (Added 23 of 1993 s. 3)
(2) Property shall be treated for the purposes of this Part as belonging to any person-
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an
equitable interest arising only from an agreement to transfer or grant an
interest); or
(c) having a charge on it.
(3) Where property is subject to a trust, the persons to whom it belongs shall be so treated as including any person having a right to enforce the trust.
(4) Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 10 U.K.]

————
Section 60 – Destroying or damaging property – 30/06/1997
Section Num:
60
Version Date
30/06/1997
Heading
Destroying or damaging property

(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,
shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 1 U.K.]

License to Sing Finds no Legality in Chinese Law

Chinese official news agency reported this month that the Ministry of Culture is going to promulgate rules requiring singers and other entertainers to have a license in order to practice their profession. The Chinese Law Prof. Blog thought poorly of this forthcoming regulation but seems couldn’t help it since China’s Administrative Licensing Law dose not clearly prohibit the governmental authorities issue this kind of license.

If we merely read the articles in Administrative Licensing Law, it seems really a pity. Fortunately, some other existing legal documents may block the attempt of this kind of ridiculous regulation.

Firstly, the Ordinance of Entertainment Place dose not require any specific license to the people who work in the entertainment place. In its Article 25, the only certifying requirement to the employees is their Resident ID card (except foreigners, this dose not breach the GATS, by the way). This ordinance was promulgated by central government in 2006, and according to China’s Legislation Law, it will prevail over any departmental regulations when the conflicts happen.

Secondly, the Ministry of Culture itself, joint with other departments in 2005, promulgated a binding regulation to encourage the development of private entertainment organizations. In this document, the requirement of license to individual performers has been abolished in paragraph 2.

Thirdy, In the Commercial Performance ordinance, the only license requirement are designed for the commercial performance organization, but not individuals. This, again, nullified any departmental regulation that tried to licensing the singers.

Interestingly, in the Layout of Culture Development in 11th Five Year, the “licensing” was mentioned twice vaguely in its article 21 and article 41. However, even it could be interpreted to the performers, this doucment still can not prevail the “Ordinances” signed by Premier.Well, it’s enough. Even if we didn’t discuss the Legitimacy of licensing to singers from the basic theories of civil rights, this unreasonable ambition still can not find the Legality after a positive analysis to the existing Chinese legal system.

I am not a professional in Administrative Law, but I don’t think any neutral lawyer would tolerant this kind of license. From my professional arena, IP law, this license will definitely erode the fundamental neighboring right of performers that be confirmed in China’s Copyright Act.

Furthermore, this kind of license will not be practicable since it is very very difficult to check each performance in each entertainment events. Actually, there were some (maybe abolished now) reginal regulations (sorry I don’t add the link here since it is really embarrassing to a Chinese lawyer) tried to enforce the licensing regime to performers. And these regulations had been sneered by commenting “chinese people are always good at examinations…” Even we tried to believe that the authority officers are in good will, the result of these regulations will be the selective enforcement of the law, and that will be wasteful, terrible, anti-rule-of-law, shameful and useless.

DO NOT BE EVIL,or, at least, DO NOT BE SHAMEFUL AND USELESS EVIL,OK?