As interest in international public relations increases, knowing the communication laws that affect other countries is all the more important. Nowhere is this more important than China. In April 2015 the Chinese government passed new communications laws that will go into effect in September 2015. These laws represent the latest Chinese effort to protect consumers from deceptive promotions. The practical implications of these laws is that communication practitioners will have to carefully craft content to avoid civil penalties and sanctions.
To fully appreciate how these laws work it is important to understand the Chinese legal system and its previous regulations on promotional messages. China officially has constitutional protections for the freedom of speech and the press according to Chapter 2, Article 35 of the Constitution of the People’s Republic of China. However, the legal regulation of promotional materials has evolved in the past twenty years. In 1995 China created specific advertising laws that detailed regulations of promotional content. These laws reflect some of the same expectations found in American Federal Trade Commission regulations. These laws are rooted in the idea of consumer protection and include provisions that prohibit “false information” or “misleading consumers.” There are also provisions that require certain disclaimers about price and quality of products (Advertisement Law of the People’s Republic of China, 1995).
However, these laws also contain provisions unique to China. For instance, no promotional materials can make use of Chinese national symbols or make references to the State. The law also prohibits negative commentary on competitors, forbids the use of words such as “best” or “highest grade,” and bans any use of “information suggesting pornography, superstition, terror, violence or hideousness” (Advertisement Law of the People’s Republic of China, Article 7, 1995). Sanctions for violating these laws include fines and mandatory retractions. Fines are particularly expensive ranging from one-to-five times the cost of the promotion for both the organization releasing the content and the individuals who created it.
These communication laws were created in a pre-Internet era and did not anticipate the role of social media. The new laws slated for September 2015 are meant to be an update on these older policies. Some of these new laws provide more severe penalties for violations including the wholesale prohibition of working in China.
These new laws have prompted a flurry of analysis by lawyers and businesspeople. Hogan Lovell, an international law firm, notes that the new regulations show that China is interested in regulating product quality, particularly baby food products. This is in sync with other Chinese regulations on cigarette promotions and public banning of smoking.
Perhaps the most important aspect of these new laws is their regulation of online content. These new laws restrict online criticisms, regulates use of company produced news content and exposes Internet service providers to greater liability. While it is unclear exactly how these laws will affect communication in China, PR practitioners need to know three things:
- China’s new law limits social media promotions. In these new laws there is an explicit prohibition for so-called “Black PR” (Rosenfeld et al., 2015). This type of public relations is done when a social media site contains criticisms of other organizations. The problem with this type of regulation is that it directly affects how social media platforms can operate. China currently bans most Western social media sites, most notably Facebook. However, if sites like Facebook and Twitter were allowed in China they may not present the same opportunities for social media campaigns. In many social media platforms, such as Twitter and Facebook, followers can re-tweet and comment directly on other users’ sites. While users can control the content on their social media sites it is difficult to regulate re-postings and re-tweets, especially when the material goes viral. In fact, the number of re-posts is part of the new Chinese laws. If the material is visited by over 5,000 visitors and causes mental and physical harm to an individual the users may be subject to criminal penalties. This is significant for PR practitioners who may use social media platforms to generate attention for a particular campaign. Because user interaction is paramount in an effective social media strategy the openness of a site is essential. However, China’s laws that tie sanctions to views of a site could spell disaster for a viral campaign or even a post if that content is deemed legally derogatory or offensive.
- China’s new laws may limit native advertising and content marketing. Promotional content taking the form of editorials is all the rage. Sometimes this is referred to as native advertising or content marketing. Basically these terms refer to online content that promotes an organization through the form of the platform. This creates a seamless experience for the user. Social media and online clearinghouses, such as Amazon, have revolutionized this form of promotion. However, China’s new communication laws seem to limit or even ban this type of promotion. According to these laws, disclosing personal information about users and the use of deceptive promotional tactics are forbidden. Because online native advertising and content marketing rely on user profiles to generate content this may qualify as illegal disclosure and deception. PR practitioners are gaining new opportunities in digital PR because of content marketing. However, if China’s new laws are more restrictive in regulating online content, practitioners may be limited in their PR strategies.
- China’s new laws provide for more severe sanctions. In the 1995 Advertisement Law of the People’s Republic of China, sanctions mainly included set fines. These fines were sometimes specific or sometimes were based on the cost of the promotional campaign. These new communication laws now include penalties that require violators to pay legal fees and court costs. According to Eugene Low (2015), a Hong Kong based attorney, the new law also includes sanctions that ban endorsers of messages from engaging in communication for up to three years. Perhaps most significantly, criminal libel exists in China. If convicted a person can spend up to three years in prison for criminal libel according Article 246 of the Criminal Law of the People’s Republic of China. If content is deemed harmful to an individual or group, practitioners and organizations could face criminal punishment in addition to civil damages. If practitioners unwittingly violate one of these laws, they and their client can be subject to economically debilitating consequences.
While it is impossible to tell the true effect of these laws until they are implemented, it is undeniable that they are important. Western, particularly American, professionals frequently view the world through the lens of Western legal traditions. While practitioners acknowledge that international practice means respecting the norms, values and conventions of other countries, it is sometimes difficult to remove the subconscious understanding of Western legal rights. However, to have an effective international PR practice, practitioners must know the contours of communication law wherever they practice. Because China’s economy and population are so large it is difficult to image an organization or PR firm not conducting business there. This means practitioners, clients and management need to know these new laws and expectations. Knowing how to work within these legal boundaries not only protects the practitioner, but also allows them continued opportunities in international markets.
References
Advertisement Law of the People’s Republic of China (1995, February 1). Retrieved June 4, 2015.
Low, E. (2015, April 30). China’s new Advertising Law sees the light of day. Lexology. Retrieved June 4, 2015.
The National People’s Congress of the People’s Republic of China. (2004, March 14). Retrieved June 4, 2015.
Rosenfeld, J., Wang, V., Doren, A., & Huang, A. (2015, March 22). Taming the “Wild West” in the Far East. Media Law Monitor. Retrieved June 4, 2015.
Cayce Myers, Ph.D., LL.M., J.D. is the legal research editor for the Institute for Public Relations. He is an assistant professor at Virginia Tech’s department of communication where he teaches public relations.
@Don – doesn’t Kasky’s settlement leave in place the California Supreme Court’s ruling that Nike was engaged in commercial speech? I don’t know that this was a victory for PR, though the SCOTUS decision not to hear the case after all could be interpreted in that way…
Cayce – great stuff with huge implications for PR practice indeed. For a class, I wrote a paper on the changes to US rules on bloggers and commercial speech — it references Kasky v. Nike as per Don’s comment above — and my conclusion concedes that speech can be commercial if not actually advertising. I think this distinction is important, and even in the Chinese cases may provide a logical path to defense (though I am not a lawyer, let alone versed in Chinese law!) The definitions of deception or even of negative will be argued, but if the “speech” in question isn’t commercial on the face, perhaps it won’t apply?
Always nice to read your pieces, Cayce.
Sean
I’ve known about these laws for a bit, but have never seen them explained so clearly. Thank you Cayce.
Now, I need to reflect more carefully on their implications, especially since this summer I’ll be conducting writing workshops in Singapore, Hong Kong and Shanghai. I certainly don’t want to teach anything that will get the participants in trouble with the government authorities.
I’ll ask for comments about the new laws from the participants, many of whom handle marketing and corporate communication for companies that are or do business in China. Their take should be informative and insightful.
The rule Cayce refers to about re-postings and re-tweets would seem to guarantee legal actions because you can’t control how many people do this with what you’ve written online or the potential behavioral change that might occur if they did. Even if you put a warning at the top of your documents — BIG BOLD LETTERS WITH SKULLS AND CROSSBONES — instructing readers not to pass them along because by doing so they could create legal hassles, people are going to do it no matter, some out of pure spite. Imagine what a field day attorneys in the U.S. would have if federal, state and local governments could sue for damages under the same or similar circumstances.
Imagine what the fallout would do to the practice and price of PR. Before long, I’m sure the Chinese government will refine this and related rules, but in the meantime those who are or work in China will have to pay greater attention to their words.
This article is another great example of how the Institute contributes to the thinking and actions of the professional public relations community. It would be wonderful if we had a portfolio of articles on the laws that affect public relations and related functions in all the leading countries. More important, what, if any, law suits have actually resulted from infractions, especially from the use of words, and the fallout for practitioners and their clients or employers.
One law suit in the U.S. that immediately comes to mind is the 1998 Kasky vs. Nike case in California. PR won, so to speak, but the implications were chilling for awhile and could be again. http://www.sourcewatch.org/index.php?title=Kasky_vs_Nike