The Cyberspace Administration of China, the Ministry of Industry and Information Technology, the Ministry of Public Security and the State Administration for Market Regulation jointly promulgated, on December 31, 2021, the Provisions on Administration of Algorithmic Recommendation in Internet Information Service (互联网信息服务算法推荐管理规定) (the “Provisions”), which entered into force on March 1, 2022.
The Provisions consist of 35 articles divided into 6 chapters. According to their article 2, the provisions apply to the provision of information services on the Internet with the application of algorithmic recommendation technologies (hereinafter referred to as “algorithmic recommendation service”) in the territory of the People’s Republic of China. The provisions further define that “the application of algorithmic recommendation technologies” refers to “the application of any algorithmic technology, including, but not limited to, generation and synthesis, individualized pushing, sorting and selection, search and filtering, planning and decision making, providing information to users.
The provisions specified, among other things, (1) the responsibilities of algorithmic recommendation service providers to manage, audit and improve the algorithmic recommendation mechanism and services so as to promote positive social values and public welfare, ( 2) the specific actions these service providers must take to protect the rights and interests of their users; (3) the obligation for an algorithmic recommendation service provider having a public opinion attribute or a capacity for social mobilization to deposit, via an official electronic archiving system and within 10 working days following the provision of its services , its name, type of service, field of application, type of algorithm, self-assessment report of the algorithm, content to be published and its other information; and (4) the legal responsibilities associated with violation of the provisions, which include, in some cases, suspension of information update, imposition of a fine of 10,000 to 100,000 RMB, administrative penalties and even criminal liability.
In particular, if an algorithmic recommendation service provider violates any of the following provisions, criminal penalties may be imposed if certain thresholds are met. For the avoidance of doubt, the provisions imposed further obligations on providers of algorithmic recommendation services, which we will not expand on here but may expand on in future blog posts.
Standards for the provision of information services
Article 7 of the provisions requires an algorithmic recommendation service provider to fulfill its algorithmic security responsibilities, establish and refine the following management rules and technical measures: review of the algorithmic system and mechanism, review science and technology ethics, user registration, information release review, data security protection and personal information protection, telecom network fraud prevention, security assessment and monitoring, and management plan. urgency of security incidents, etc., to formulate and publish the rules for the algorithmic recommendation service, and to be provided with the professionals and technical support corresponding to the scale of the algorithmic recommendation service.
Article 8 of the provisions requires algorithmic recommendation service providers to regularly review, evaluate and verify the algorithmic mechanism, model, data and application results, etc. and do not implement the Algorithmic Model in violation of any law, regulation, or moral principles such as encouraging users to become addicted or overspend.
Paragraph 1 of Article 9 of the provisions requires providers of algorithmic recommendation services to strengthen their management of information security, establish and refine the library of features used to identify illegal and harmful information, and improve storage standards, rules and procedures. If any information generated or synthesized by the algorithm is found not to be visibly marked, transmission of that information should be suspended until it is visibly marked.
Article 10 of the provisions stipulates that an algorithmic recommendation service provider shall strengthen the management of the user model and user tag and improve the point of interest rules for entering the user model and shall not enter the keywords of illegal and harmful information in the point of interest of users or use the illegal and harmful information as a user tag and push information content based on it.
Article 14 of the provisions states that an algorithmic recommendation service provider shall not use any algorithm to register fake user accounts, trade accounts illegally, manipulate user accounts or provide fake likes, comments or transmissions, and shall not use any algorithm to block information, provide excessive recommendation, manipulate ranking lists or search result rankings, manipulate the presentation of trending topics, curated content or other information intermediaries, to influence opinions online or circumvent oversight and administration.
Protection of the rights and interests of users
Under Article 16 of the provisions, an algorithmic recommendation service provider must, in a conspicuous manner, inform its users of its provision of algorithmic recommendation service and notify the public, in an appropriate manner, of the basic principles, the purpose and the intention, and the main operating mechanism, etc. of its algorithmic recommendation service.
Under Section 17 of the provisions, an algorithmic recommendation service provider must provide users with (1) options that are not personalized to users’ individual characteristics, or (2) the ability to conveniently close the service algorithmic recommendation. If a User elects to terminate the Algorithmic Recommendation Service, the Algorithmic Recommendation Service Provider shall immediately cease providing this Service to that User. In addition, an algorithmic recommendation service provider must provide users with the ability to choose or remove personalized user tags based on their individual characteristics that are used to provide an algorithmic recommendation service. If the application of an algorithm by an algorithmic recommendation service provider materially affects the rights and interests of users, the algorithmic recommendation service provider shall provide explanations and bear the corresponding responsibility according to law.
Under Section 22 of the provisions, an algorithmic recommendation service provider must establish and maintain convenient and efficient portals for its users and the public to file claims, complaints and reports of violations, and must specify the procedures and timetable for its procedures for dealing with such complaints. , complaints and reports, and will accept and respond in a timely manner to such complaints, complaints and reports, and provide feedback thereon.
File Filing and Posting Requirement
Article 24 of the provisions obliges any provider of algorithmic recommendation service having a public opinion attribute or a capacity for social mobilization to file relevant information (for example, its name, the type of service, the field of application, the type of algorithm, the self-assessment report of the algorithm, the content to be published, etc.) via an Internet portal in order to carry out the archiving procedures. This deposit must be made within ten working days from the date on which this service provider begins to provide the services concerned. Additionally, if there is a change in the information filed, that service provider must file that change within ten business days; and if that service provider terminates its services, it must cancel the filing of the case and make the appropriate arrangements within twenty business days of the termination of its services.
Section 26 of the provisions requires an algorithmic recommendation service provider that has completed the registration filing to display its filing number and provide a link to the relevant public notice in a prominent place on its websites and programs. applications through which it provides services to its users.
Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 82