New challenges facing platform operators under safe harbour rule

The safe harbour regime centred around the “notify and delete” rule is one of the most basic and important mechanisms among internet laws and regulations. Notify and delete was initially applied in the domain of copyright law. On detecting any online copyright infringements, the copyright holder has the right to request the platform operator to block or remove, in other words “delete”, the infringing link.

With the constant emergence of new internet business models, the widespread use of algorithm-based recommendations, and repeated infringements posing new challenges to rights protection, the simple notify and delete rule can no longer sufficiently meet the needs of rights holders, requiring an extension of countermeasures from “deleting content” to “banning the user”.

Accordingly, the current rule has evolved into “notify and take necessary action”. However, the question of when it becomes necessary to ban user accounts still requires judicial exploration. In this regard, this article discusses the necessary preconditions leading to the escalation of action.

PROPER NOTIFICATION

What type of notification issued by the rights holder will likely trigger the banning of the account?

Notice should meet the statutory requirements for notification, and makes a clear request to ban the account. According to the law, the notice of rights must contain proof of ownership, information about the rights holder, the title and web address of the infringing works to be removed or unlinked, and preliminary evidence of infringement. Additionally, the right holder must explicitly request that the service provider “ban the account”, rather than making a more general request, such as asking for “actions including but not limited to deletion”. Notices making general requests often cannot satisfy the requirements for banning accounts, which are considered a drastic step with serious implications.

Notice for banning an account should be premised by a severe act of infringement. The infringement must be severe enough to warrant the banning of an account. For example, in the Shanghai Pear Video v ByteDance series of disputes concerning the infringement of audio and video producers’ rights, the court noted that ByteDance had received numerous online and written complaints about the videos uploaded by its user, Grape Without Rack, in a short period of time, and yet had failed to take immediate action to prevent any further infringements. As such, ByteDance was accused of failing to take necessary action against the user, and failing to fulfil its duty of due care.

Notice should enable the platform operator to make a reasonable judgement on the severity of the infringement. In particular, the rights holder should provide clear and persuasive proof for the platform. The platform operator should not be liable to ban the account unless it deems such action as reasonable. For instance, requesting to ban the account in the first notice may contravene the doctrine of “balance of interests”.

In Douyin Vision v Baidu Netcom and Baidu Online, a dispute over infringing on the right to disseminate works through information networks, the rights holder claimed that Baidu Netcom failed to ban the account involved in continual infringements, which allowed the further infringement under dispute to take place.

The court held that complaints were made against specific links, rather than repeated complaints on the same link, and these links corresponded to different video content. Requiring the platform operator to determine the possibility of future infringement by a user according to the content of the complained link, and to ban the user’s account would be an unreasonable aggravation of the platform operator’s burden, given the usual large amount of video content under one user account on the online video platform.

BALANCING INTERESTS

The shift from notify and delete to notify and take necessary action puts stricter requirements on platform operators, but does not necessarily mean that account banning should be applied in all cases.

After the rights holder has issued an eligible notice sufficient to trigger account banning, the platform operator should also assess the situation to make a final decision. What factors should the platform consider before deciding to ban the account?

The platform operator’s liability should be determined pursuant to the “objective imputation” standard. Differences among platform operators are inevitable. Compared with startups, service providers similar to BAT (Baidu, Alibaba, Tencent) wield significantly more regulatory capacity.

In the formulation of rules, however, startups and BAT-like service providers should not be treated differently. For example, if the platform operator is obliged to manually examine and assess whether infringing acts involved in multiple complaints are committed by the same user, it will impose excessive burden on the platform operator, which can hardly justify the banning of the account.

The popularity of the works is also a consideration for the platform operator to take necessary action such as banning or blocking the user. In the case of iQiyi v ByteDance, regarding infringement of the right to disseminate the movie Heartfall Arises through information networks, the court held that the work in question was very popular and influential, and the alleged infringement occurred during its high-profile broadcasting. Taking into account other factors, the court ruled that ByteDance should have known about the alleged act, and that it should take necessary action.

A balance should be struck between the interests of the rights holder, the network service provider and the user, following the principle of proportionality. For network users, it is their legal right to open accounts and publish content on the platform. Since the platform registration information is personally identifiable, it falls into the category of personal information.

Therefore, the platform operator should deal with the user account to a reasonable and necessary extent. Banning is the most severe measure taken against an account, resulting in all content posted or to be posted by the user under the account becoming unsearchable. For this measure to be applicable, the principle of proportionality must be met.

Chen Mingtao is a partner at Commerce & Finance Law Offices. He can be contacted by phone at +86 10 6563 7181, and by email at chenmingtao@tongshang.com