Making the private public: Regulating content moderation under Chinese law

Abstract

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, whereby it exempts general monitoring obligations of intermediaries under private law while imposing monitoring obligations under public law. In recent years, major platforms exercise much stronger control over flow of information, regardless of more serious consequences that impact the fundamental rights of users. 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 harbor rule. 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.