Adv. Tehila Levi-Lati Dr Chuanman You
ZAG-S&W International Law Firm Faculty of Law, Tel Aviv University
28 January 2019
One of the world’s first comprehensive legislations governing the electronic commerce has recently entered into effect as of January 1, 2019. Titled E-Commerce Law of the People’s Republic of China, in Chinese 中华人民共和国电子商务法(Zhonghua Renmin Gongheguo Dianzi Shangwu Fa), the law was previously adopted on August 31, 2018 by China’s legislature, the Standing Committee of the National People’s Congress.
The timing is pivotal. China has almost accomplished digital transformation and become a global leader in the digital economy. In 2018, the electronic commerce is estimated to grow to 33.6 percent of national retail sales. As the country’s e-commerce market grows at such a staggering rate, it is ever more urgent to have a systematic and compressive regulatory regime to oversight the market development.
The new Law constitutes of 89 provisions that are further structured into 7 chapters, including general principles, e-commerce business operators, formation and performance of e-commerce contracts, resolutions of e-commerce disputes, promotion of e-commerce activities, legal responsibilities and supplementary provisions. In this essay, we highlight some of critical rules shedding significant impacts on international e-commerce operations.
Jurisdictions of the E-commerce Law
The new E-commerce Law regulates a wide range of e-commerce activities, which are defined as businesses of selling commodities or providing such services via the Internet or any other information network. The regulated e-commerce activities, however, exclude activities engaging financial products and services, as well as news information, audio and video programs, publications, cultural products, and other content services provided via information networks.
Article 2 of the E-Commerce Law states that the new law applies to e-commerce activities within the territory of China. However, offshore e-commerce platform engaging cross-border e-commerce transactions may fall into the jurisdiction of the new law as a result of various connection factors. For example, the domicile of the online platform operating entity is within China; the online platform has filed Internet Content Provider (ICP) certification; the server of the online platform is located in China; the products or services are primarily for Chinese market.
Even if the E-commerce Law might not directly apply to the offshore e-commerce platforms or operators, other Chinese laws and regulations may well apply to cross-border e-commerce operations with respect to import and export supervisions, cyber security, and so on.
Registration, taxation, and information disclosure
Natural persons, legal persons, or unincorporated organisations engaging e-commerce activities are defined as “e-commerce business operators” (电子商务经营者). They are further divided into three categories and the law applies to all of them:
T-mall or GD
|Any legal persons or unincorporated organizations that provide virtual places for digital business, transaction matching, information release, and other services to facilitate parties in an e-commerce transaction
E-commerce platform business operators
Third party merchants that sell goods or provides services to consumers via e-commerce platforms
On-platform business operators
|Weibo or WeChat
||Other operators doing e-commerce business via their own websites or via other online channels, such as social media applications
Article 10 of the new law requires all e-commerce business operators to complete business registration as relevant market entities (市场主体登记 in Chinese). Where a special license is required (e.g. food or drug related), such licenses shall be obtained by the business operators. Registration may be exempted if the business operators are individual natural persons: 1) selling agricultural and sideline products or household handicraft products produced by themselves, or 2) use their own skills to engage in public convenience services or occasional and low-value transactions for which no licence is required by the law.
All e-commerce business operators, registered or not, must file tax returns, must issue tax invoice and may apply for tax incentives. Meanwhile, e-commerce platform business operators are obliged to report tax related information of the on-platform business operators to the tax authorities, and shall keep transaction related information for at least three years. This new mechanism will make all taxable revenue transparent to the tax authorities.
Information about registration, licensing and taxation shall be publicly disclosed and promptly updated at conspicuous places. The new law designates E-commerce platforms as the market gatekeepers to ensure the compliance of information disclosure. Article 27 obliges an E-commerce platform to verify information submitted by on-platform business operators, to establish individual profile for each operator, and to conduct regular updates. E-commerce platform failing its gatekeeper roles will face a penalty ranging from 20,000 RMB to 100,000 RMB.
Protection of Intellectual Property
Infringement of Intellectual Property (IP) have been rampant within the sphere of China’s digital economy. This new Law demonstrates greater efforts of the government to strengthen IP protections for e-commerce. As one of the general principles, all business operators are obliged to respect and protect intellectual property rights. The registration requirement discussed above make it more difficult for those who infringe on IP rights to avoid detection and punishment.
Meanwhile, the business platform operators must establish rules to protect IP rights. Whenever the platform operator knows or should have known that an operator on the platform has infringed others’ IP rights but fails to take the necessary preliminary measures, the platform operator is jointly and severally liable for all damages caused.
If IP rights holders believes that an on-platform business operator has infringed their IP rights, they may notify the platform operator and request the latter take necessary preliminary measures, such as screening or deleting information about the alleged infringement, disconnecting the relevant webpages, or terminating the transaction or service. If the platform operator fails to promptly take the necessary preliminary measures upon receiving the notice, it is jointly and severally liable for additional damages along with the operator on the platform.
A governmental IP authority may demand a platform operator to fulfil the abovementioned responsibilities; failing to act according to the governmental instruction within a specified time period, a platform operator is punishable by a fine ranging from 50,000 yuan to 2 million yuan.
Protection of Privacy and Personal Data
As of this date, China does not have a systematic and comprehensive legal framework to regulate privacy and personal data protection issues. The existing regime features a patchwork of fragmented rules that can be found under various laws, measures and sector-specific regulations, such as the Cyber Security Law (Chapter 4).
The E-commerce Law also designated several provisions to address the privacy protection issues. It is stipulated that when collecting and using users’ personal data, e-commerce operators must abide by existing Chinese laws and regulations in respect of protection of personal data. The Law further requires e-commerce operators to clearly specify to users the procedures for inquiring about, correcting, and erasing user information, and for cancelling users’ accounts. When an e-commerce operator receives a request for such inquiries, corrections, or erasures, the operator must respond in a timely manner upon verifying the requester’s identity. When a user cancels his or her account, the e-commerce operator must immediately erase the user’s information, unless otherwise provided by laws or regulations or agreed on by the parties.
The new Law also addresses the so-called algorithmic price discrimination based on the personal data. When offering goods or services including search results according to consumption preference and habits profiling, an e-commerce operator shall offer options independent from the concerned consumer’s personal profiling so as to respect and treat consumers equally. To avoid circumvention, Article 19 further stipulates that for any tied-up sales or services, a conspicuous reminder shall be displayed while default opt-in is not allowed. Any violation in this regard will face legal punishment including a fine up to RMB 500,000.
Protection of Consumer Rights
Consumers will also have stronger legal protections under the new e-commerce law. Article 17 of the law stipulates that an e-commerce operator shall fully, truly, correctly and timely disclose information about the goods or services to ensure consumers’ right of information and right of choice. Fake transactions or misleading promotion is strictly prohibited.
Cheating/manipulating in marketing and promotion activities has been a big issue. The new law protects consumers from inauthentic reviews or forged comments, which include those written not only by hired professional agents, but also by customers in exchange for monetary rewards. On the other hand, authentic comments made by genuine consumers shall not be deleted so as to dress up sales.
With respect to the platform operators, the new Law specifies responsibilities of platform operators with regard to products and services provided on their platforms. If a platform operator knows or should have known that goods or services provided by an operator on the platform do not comply with the requirements for personal or property safety protection, or an operator on the platform has otherwise infringed the legitimate rights and interests of consumers but fails to take any necessary measures, the platform operator is jointly and severally liable with the infringing operator on the platform.
The government market authority may order a platform operator that fails to fulfil the abovementioned responsibilities to make corrections within a specified time period; failure to do so is punishable by a fine ranging from 50,000 RMB to as much as 2 million RMB.
At the 19th National Congress of the Communist Party of China (CPC), President Xi Jinping emphasized the development of digital economy as one of strategic sectors in promoting China’s overall development. The enactment of a comprehensive legislation represents the government efforts towards a sustainable growth of digital economy in China. The E-Commerce Law purports to regulate online business activities, to improve consumer protections, and to promote fair competition.
While it is certainly a step in the right direction, there is scope for more improvements. Some aspects of the law still need clarification. Provisions, such as the standard of evidence required to initiate take-down procedures or the relevant legal responsibility of platform operators, are still unclear, leaving them open to abuse or misinterpretation.
As always, enforcement is the key in China and how the implementation rules will develop remains to be closely watched upon. Considering tendency of the Chinese government to quite often launch enforcement campaign when a new law becomes effective, our Chinese law experts are constantly monitoring this development.