Author｜Lawyer Zhou Zhongsheng
Less than three months after the Cyberspace Administration of China (hereinafter referred to as the Cyberspace Administration of China) formulated and released the "Blockchain Information Service Management Regulations (Draft for Comments)" on October 19, 2018, in January 2019, the Cyberspace Administration of China The official draft of the regulations was officially released on the 10th. Zhou's lawyer team interpreted the full text of the "Regulations" and compared the draft "Regulations" with the official draft. See details below.
Zhou’s interpretation:
The legislative purpose, legislative purpose and basis for formulation of blockchain regulations are introduced. There is not much difference between the consultation draft and the final draft.
Zhou’s interpretation:
1. The applicable geographical scope is "within the territory of the People's Republic of China", excluding Hong Kong, Macau and Taiwan;
2. Adjust the target to information services “based on blockchain technology or systems”, emphasize technical attributes, and exclude media and other institutions that simply provide blockchain technology information services;
3. “Blockchain information service providers” also emphasize technical attributes. All organizations or individuals that provide system services based on blockchain technology or systems are within the scope of the adjustment, including the model of "overseas operations + domestic provision of blockchain technology services".
Zhou’s interpretation:
1. Clarify that the regulatory agency for blockchain information services is the Cyberspace Administration of China;
2. The Cyberspace Administration of each province is responsible for specific law enforcement work.
Zhou’s interpretation:
Article 5 of the "Measures for the Administration of Internet Information Services" stipulates: "Engaging in Internet information services such as news, publishing, education, health care, medicines, and medical equipment must be reviewed and approved by the relevant competent authorities in accordance with laws, administrative regulations, and relevant national regulations. . Before applying for a business license or going through registration procedures, it must be reviewed and approved by the relevant competent authorities in accordance with the law.” Therefore, although the official draft of the Blockchain Management Regulations deletes the pre-review of registration for special industries such as news, publishing, and medical care mentioned in the draft requirements, but considering that blockchain information services are affiliated with "Internet information services". Under this concept, blockchain information service providers in special industries such as journalism, publishing, and education still need to obtain pre-examination approval from the relevant competent authorities before filing.
Zhou’s interpretation:
It is emphasized that blockchain information service providers should implement information content security responsibilities and keep up with staffing, technical level, management system and other aspects.
Zhou’s interpretation:
It is stipulated that blockchain information service providers should have emergency response capabilities for illegal information content, and technical solutions should comply with national standards.
Zhou’s interpretation:
It is clear that blockchain information service providers and users should be bound by management rules/platform agreements/service agreements. When disputes arise between the two parties, they should be handled in accordance with the agreement. Attorney Zhou reminds both parties to pay attention to the relevant legal provisions of contract law and electronic contracts when drafting rules/agreements.
Zhou’s interpretation:
1. It stipulates the real-name authentication responsibility of blockchain information service providers to users, and no services may be provided without real-name authentication;
2. Judging from the new “organization code” added in the final draft, users of blockchain information services include not only individual users, but also institutional users.
Zhou’s interpretation:
Security assessment is mainly to ensure data security and prevent the leakage of user information. As for how to conduct security assessments and specific assessment standards, in addition to referring to the relevant provisions and standards of the Cybersecurity Law, I believe the Cyberspace Administration of China will also develop a special assessment process.
Zhou’s interpretation:
The legal red line of blockchain information services is clarified, that is, using blockchain information services to engage in activities prohibited by laws and administrative regulations or to produce, copy, publish, and disseminate information content prohibited by laws and administrative regulations. You must not touch it, otherwise the consequences will be serious. Please see the explanation of Article 21 below for details.
Zhou’s interpretation:
1. Blockchain information services implement a "registration system", which is loose and strictly regulated. Service providers need to fill in the filing information through the special "Blockchain Information Service Registration and Management System" of the Cyberspace Administration of China. Lawyer Zhou has not seen the entrance to the filing system on the official website of the Cyberspace Administration of China. In order to ensure the smooth implementation of the Regulations on February 15, 2019, the Cyberspace Administration of China should officially launch the system before then;
2. Changes or cancellations of service items should also go through the corresponding procedures through the system;
3. Compared with the draft for comments, the final draft simplifies the filing procedure and deletes the words “filing registration form”.
Zhou’s interpretation:
1. The filing results include filing and disapproval. If approval is not granted, the reasons shall be stated;
2. The Cyberspace Administration of China shall publish the filing information to the public to facilitate public inquiries.
Zhou’s interpretation:
It is stipulated that service providers are responsible for marking the registration number in a prominent position on the platform.
Zhou’s interpretation:
The "annual review" will be finalized as a "regular inspection" to facilitate flexible supervision by the cyberspace department.
Zhou’s interpretation:
It stipulates the responsibilities when blockchain information services have information security risks, and blockchain information service providers should make rectifications. As for the motivation for rectification, based on the changes in the expressions in the consultation draft and the official draft, Lawyer Zhou believes that this rectification is more focused on the blockchain information service provider taking the initiative to rectify after discovering the problem, rather than taking the initiative to rectify. Waiting for orders from the cyberspace department.
Zhou’s interpretation:
1. It stipulates the measures that blockchain information service providers should take against users who violate laws or breach of contract, including warnings, restricting functions, closing accounts, etc. Judging from the terms, this content should belong to blockchain information services. Provider duties and responsibilities, not rights;
2. Blockchain information service providers bear the responsibility of “preventing the spread of information”. Therefore, if the behavior of blockchain information service users constitutes infringement of others, the blockchain information service provider needs to bear the responsibility for expanding the damage. civil legal liability;
3. In addition, blockchain information service providers also have the obligation to report to the cyberspace department.
Zhou’s interpretation:
It stipulates the record backup responsibilities of blockchain information service providers, and the retention period is adjusted from "six months" in the consultation draft to "not less than six months". This change should take into account the skill level of each service provider. There is no upper limit on the retention period of records, but the minimum period shall not be less than six months.
Zhou’s interpretation:
It stipulates the supervision and inspection cooperation obligations of blockchain information service providers, emphasizing information transparency and social supervision.
Zhou’s interpretation:
1. This article stipulates the legal responsibilities of blockchain information service providers in the following aspects: (1) Violation of information content security management responsibilities; (2) Technical solutions that do not comply with relevant national standards and regulations; (3) Failure to formulate and make public Management rules and platform conventions; (4) Failure to conduct safety assessments on new products; (5) Failure to go through the change procedures for changing service items; (6) Failure to mark the registration number in a prominent position on the platform; (7) Service information security Risks that have not been rectified; (8) The retention period of record backups is less than six months or refusal to provide them to law enforcement agencies; (9) Failure to cooperate with the supervision and inspection of the cybersecurity and informatization departments or failure to accept social supervision, etc.
2. Corresponding administrative penalties include warnings, orders to make corrections within a time limit, and fines (5,000-30,000 yuan). In serious cases, criminal liability may be pursued.
Zhou’s interpretation:
1. This article stipulates the legal responsibilities of blockchain information service providers in the following aspects: (1) Failure to conduct real-name authentication of users; (2) Failure to take corresponding measures in a timely manner to deal with users’ illegal information content;
2. Article 61 of the "Cybersecurity Law" stipulates that administrative penalties for network operators who fail to conduct real-name authentication of users include orders to make corrections, fines (not less than 50,000 but not more than 500,000), and even the revocation of business licenses, business licenses, etc. . ; In addition, the directly responsible person in charge and other directly responsible personnel shall be fined not less than RMB 10,000 but not more than RMB 100,000.
Zhou’s interpretation:
1. For red lines of information content prohibited by laws and administrative regulations, any link in the information chain (production, copying, publishing, dissemination) needs to bear corresponding legal responsibilities;
2. In addition to blockchain information service providers, blockchain information service users may also be required to bear relevant legal responsibilities.
Zhou’s interpretation:
1. Specifies the legal liability for failure to perform filing procedures and filling in false filing information, including corrections within a time limit, warnings, and fines (10,000-30,000);
2. The draft for comments has inconsistent provisions on penalties for failing to perform the filing procedures and filling in false filing information. It was divided into two articles, which were harmonized in the official draft.
Zhou’s interpretation:
1. The "Blockchain Information Service Management Regulations" will come into effect on February 15, 2019;
2. Those engaged in blockchain information services before the promulgation of the Regulations (i.e. before January 10, 2019) shall complete the application within 20 working days from the date of implementation of the Regulations (i.e. before March 14, 2019). Related procedures. According to Mr. Zhou’s understanding, “relevant procedures” mainly refer to the procedures in this case. It is also recommended that relevant entities involved in blockchain information services strictly implement the various specifications of these regulations to avoid unnecessary penalties.
标签： #Block #Interpretation #Filing #Solicitation #Expression
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