With the expansion of digital economy, tackling illegal online content is an increasingly challenging task. China implemented a dual-track legal mechanism on content moderation that emphasizes the public and private distinction. Specifically, ISPs) are exempted from monitoring obligations in private law, while public law explicitly imposes monitoring obligations for ISPs, requiring them to take on the role of gatekeepers who have a responsibility towards the public interest.
In recent years, major Chinese platforms adopted a crafty approach by introducing more blurred and abstract concepts to explain the ambiguous language of legislation, thus worsening the predictability of house rules. In addition, platforms adopt diverse measures, both preventive (ex-ante) and reactive (ex-post), to control the availability, visibility and accessibility of certain content, or restrict users’ ability to provide information. Conversely, platforms amplify their content moderation capacity through substantial quasi-legislative authority derived from internal regulations. This authority enhances platform autonomy in deploying moderation technologies and establishing norms for permissible content. Additionally, law enforcement agencies leverage platform capabilities for detecting and managing illicit content, delegating to ISPs the role of enacting collateral censorship via private ordering.
Meanwhile, a series of Chinese court rulings have shown that these divergent attitudes towards monitoring obligations under public and private law have given rise to legal conflicts that may deprive intermediaries of their legitimate immunity, undermining the stability and efficiency of the safe harbour rule established in private law. Platforms face a dilemma: if they fail to fulfil their monitoring obligations set by public law, they are deemed to have contributed to the occurrence of the infringement, for which they must assume administrative liability. At the same time, they need to conduct ex ante monitoring of content uploaded, which means they have had constructive knowledge of the existence of infringing content and thus may bear a higher level of duty of care. Furthermore, the lack of adequate legal safeguards against the risk of abusing automatic content filtering technology might transform the internet into a digital panopticon.
To redraw boundaries between monitoring obligations under private and public law, future Chinese legislation should not only provide clearer clarification on the scope of monitoring, but also include a provision prohibiting general monitoring obligations in private law. To provide legal predictability for affected parties and flexibility for future technological developments, a Good Samaritan clause should be introduced in Cybersecurity Law by learning from the substance of Article 7 of the DSA.
