On September 12, 2020, the Supreme People’s Court issued its new “Guiding Opinion on the Trial of Civil Cases of Intellectual Property Rights Involving E-Commerce Platforms”  关于审理涉电子商务平台知识产权民事案件的指导意见 (the “Guiding Opinion”).

This Guiding Opinion explicitly references China’s E-Commerce law.  A translation is available here. I previously discussed the drafting of that law here.  As best I can tell this document was not anticipated in the SPC’s JI drafting agenda of earlier this year.    That is likely because strictly speaking a “Guiding Opinion” is not a judicial interpretation.  As one observer has noted: “These notices and opinions encourage judges to make decisions, or local courts to explore new mechanisms based on their attitudes. The SPC will sometimes formulate official judicial interpretation based on the judicial practice after these documents are published.”

The Guiding Opinion should further help implement obligations set forth in Section 1 (E) of the Phase 1 Trade Agreement regarding “Piracy and Counterfeiting on E-Commerce Platforms”, although It is not a specifically enumerated “deliverable” in that Agreement.  The Phase 1 Agreement does include a number of specific reforms that the US and China agreed to, including “extend to 20 working days the deadline for right holders to file a judicial or administrative complaint after receipt of a counter-notification”; “ensure validity of takedown notices and counter-notifications, by requiring relevant information for notices and counter-notifications and penalizing notices and counter-notifications submitted in bad faith” and  that “China shall provide that e-commerce platforms may have their operating licenses revoked for repeated failures to curb the sale of counterfeit or pirated goods.”  These reforms may be reflected in other legislative or judicial acts.

In the absence of a complete translation, I offer here one provision regarding implied knowledge of infringement by an e-commerce platform in the Guiding Opinion ,which is likely intended to help implement Arts. 38, 41, 42 and 45 of the E-Commerce law:

“电子商务平台经营者存在下列情形之一的，人民法院可以认定其“应当知道”侵权行为的存在：

　　（一）未履行制定知识产权保护规则、审核平台内经营者经营资质等法定义务；

　　（二）未审核平台内店铺类型标注为“旗舰店”“品牌店”等字样的经营者的权利证明；

　　（三）未采取有效技术手段，过滤和拦截包含“高仿”“假货”等字样的侵权商品链接、被投诉成立后再次上架的侵权商品链接；

　　（四）其他未履行合理审查和注意义务的情形”

“The People’s Court may determine that an e-commerce platform operator ‘should be aware of’ the existence of infringement under the following circumstances:

1) Failure to perform legal obligations such as formulating intellectual property protection rules and reviewing the operating qualifications of operators on the platform;

(2) Where there is no review of the proof of rights of operators whose store types on the platform are marked as “flagship store”, “brand store”, etc.;

 (3) Failing to adopt effective technical means to filter and block infringing product links containing the words “high imitation” and “fake goods”, and links to infringing products that are re-listed after the complaint is established; and

(4) Other circumstances where reasonable review and care obligations are not performed.”

What constitutes “effective technical mean to filter and block” or  “reasonable review and care” are key issues in the Guiding Opinion and for the future.  This Guiding Opinion offers some concrete examples. As technology evolves in such areas as machine learning and recognizing of fake products and fake product purveyors, the concepts of “effective” and “reasonable” may necessarily evolve.  These changes in technology could impose greater technical and financial obligations on e-commerce platform operators. As I recall, the evolving nature of these technologies was discussed about a decade ago by the late Prof. Guo Shoukang and hosted by AmCham on e-commerce liability, and it remains true today. 

Terms such as “effective” and “reasonable” in the Guiding Opinion offer an opportunity for the courts to flexibly address newly emerging challenges as they arise.  These general concepts are also in synch with a trend towards greater flexibility by the Chinese courts in addressing emerging legal and technical challenges in China.  As with the definitions of “bad faith” which are also described in the Guiding Opinion Arts. 6, 8 and 10 for platform business operators  and rights holders providing notifications and counter-notifications of infringement, the concept of “implied knowledge” is part of a broader effort to incorporate “good faith” -type obligations into Chinese IP and civil law generally. 

Please send in any corrections or comments.