Privacy & Information Security Law Blog

On May 19, 2015, China’s Ministry of Industry and Information Technology promulgated its Provisions on the Administration of Short Messaging Services (the “Provisions”), which will take effect on June 30, 2015.

Prepared to combat improper texting practices, such as junk short messages, the Provisions were adopted under the July 2014 People’s Republic of China (“P.R.C.”) Telecommunications Rules (“2014 Revision”) and the December 2012 Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet for purposes of (1) normalizing conduct related to short messaging services (“SMS”), (2) protecting the lawful interests of users, and (3) promoting the sound development of a market for SMS.

The Provisions are important in several ways. First, they establish certain basic operating requirements which SMS providers must observe in their text messaging campaigns. Under these requirements:

• SMS providers must hold a telecommunications enterprise license;
• when SMS providers charge user fees, the charges must be made in accordance with applicable laws, regulations and standards;
• SMS providers must maintain records of the times of transmission, user receipts and when a user unsubscribes; and
• SMS providers must not use SMS systems to circulate or broadcast illicit content.

Second, the Provisions establish more detailed rules (for example, compared to the earlier amendment to the P.R.C Law on the Protection of the Interests of Consumers or its implementing measures published on January 5, 2015) on the manner in which text messages may be sent to consumers. Under the Provisions’ rules:

SMS providers and short messaging content providers must not send commercially-purposed text messages to end users without their consent or request;

• when end users provide their consent, the type, frequency and duration of the planned broadcast campaign must be made clear;
• commercially-purposed text messages must not be sent to certain (non-commercially oriented) ports;
• commercially-purposed text messages must include an expedient and effective method for unsubscribing; and
• SMS providers must establish a system for supervising text messages, and an early warning and monitoring mechanism.

In addition to the foregoing rulemaking, the Provisions establish practical channels by which consumer interests could be protected. These include:

• The Provisions establish a system by which consumers can make complaints and file reports. They establish a reporting and handling center under the auspices of the Ministry of Industry and Information Technology, through which reports of “nasty” (不良) or junk short messages can be processed. They also clarify procedures under which infringements and violations involving text messages can be handled, and under which punishments can be meted out.
• The Provisions strengthen the oversight and inspection system. They clarify the authority and duty of the regulatory authority to carry out oversight and inspection, and the corresponding duties of SMS providers.
• The Provisions establish penalties for unlawful behavior among SMS providers, short messaging content providers, personnel of the supervisory authority, and personnel of the reporting and handling center. Violations are subject to being recorded in a permanent file, and responsible persons may be subject to “supervisory discussion.”

Apart from regulating conventional SMS, the Provisions also extend to information delivery services similar to SMS that use the Internet. Article 38 of the Provisions provides that delivery services which send information having the characteristics of a short message (for example, text, data, voice or images) to fixed telephones, mobile telephones and other communications end-users, via the Internet, shall be conducted with reference to the Provisions.

By their terms, the Provisions only affect the use and transmission of text messages. This makes them rather specific in their scope and impact. The Provisions have, however, the potential to materially increase operational requirements for those companies which rely on the use of text messages. They also clarify how such companies may be held accountable.

In the abstract, the Provisions are a particularly fine-grained illustration of China’s ongoing reliance on a sector-by-sector approach to the development of its regulatory framework on personal information.