On 1 November 2021, the Personal Information Protection Law (PIPL) came into effect. The PIPL has a specific provision for “automated decision-making”.
On 31 December 2021, the Cyberspace Administration of China (CAC) released the Administrative Provisions on Algorithm Recommendation of Internet Information Services (Algorithm Provisions). The Algorithm Provisions came into force on 1 March 2022 and apply to the provision of Internet information services by applying recommendation algorithm technology (Recommendation Algorithm-Based Services) within the territory of China. Recommendation algorithm technology refers to generation and synthesis technology, personalised pushing technology, ranking and selection technology, retrieval and filtering technology, and dispatching and decision-making technology.
The Algorithm Provisions mainly set out technical and policy requirements, assessment and content moderation obligations, ecosystem management, user right enhancement and transparency principles, ethical requirements, and filing regime applicable to large platforms. Non-compliance with the Algorithm Provisions may lead to warning, order for rectification, suspension of business in serious cases, and a fine of up to CNY 100,000.
On August 12, 2022, the CAC issued the Filing List of Domestic Internet Information Service Algorithms (August 2022) (Algorithm Filing List), publicising the names, uses, application products, record numbers and other information of 30 algorithms from 24 companies that have registered for algorithms. This important law enforcement action also plays an important role in the understanding and application of the Algorithm Provisions.
Notably, the CAC also formulated a dedicated regulation on deep synthesis technology, i.e., the Provisions on the Administration of Deep Synthesis of Internet Information Services (Deep Synthesis Provisions). The Deep Synthesis Provisions focus on the management of deep synthesis technology, which refers to any technology that uses deep learning, virtual reality, or any other generative and synthetic algorithm to produce text, images, audio, video, virtual scenes, or other network information.
On July 10, 2023, seven departments including the CAC jointly issued the Interim Measures for the Management of Generative Artificial Intelligence Services (Generative AI Measures), which aim to promote the development and ensure the security of this fast-growing area of technology. The Generative AI Measures come into force on August 15, 2023.
When developing algorithm products or services in China, enterprises should pay attention to the following:
When using generative AI technology to provide services to the public within the territory of China, companies should pay attention to the following:
The Generative AI Measures require service providers to be responsible for the content generated by the generative AI, including ensuring that the content is:
Where non-compliant content is generated, service providers must prevent the generation of such content, and stop the transmission, or optimize the training model, and report to the competent authorities.
Service providers are required to mark to the public, the relevant content generated by AI in a conspicuous manner.
The Generative AI Measures mandate that service providers should, upon the authorities’ request, furnish necessary information that may affect the trust and choice of the end users, such as a description of the source, scale, types and quality of the dataset, rules and types of manual labeling, the basic algorithm and the technology stack.
In addition, service providers must make public the targeted group of users, scenarios and purposes of the generative AI services.
The Generative AI Measures have set out specific compliance requirements for training the Generative AI model. These include:
The Generative AI Measures require that if the generative AI services have public opinion attributes or the capacity for social mobilization, before providing such generative AI services to the public. The service providers should apply for a government security assessment and a filing of algorithm - both of which are supervised and coordinated by the CAC. The CAC also adopts the same requirements for recommendation algorithms.
Although ethics are not expressly discussed in the Generative AI Measures, the government also intends to strengthen ethical reviews of technologies. In an official opinion issued by the central government in 2022 (Opinions on Strengthening the Governance of Scientific and Technological Ethics), AI is one of the three key areas where the government will focus on formulating laws, regulations, standards and guidance. Under the recent Measures for Review of Scientific and Technological Ethics (for Trial Implementation), technologies involving data and algorithms should be reviewed for their security, fairness, transparency, reliability, and trustworthiness.
Service providers are required to compete fairly and to respect the rights of others, including not infringing their rights to portrait, reputation, privacy, personal information, and commercial secrets. In particular, the Generative AI Measures require service providers to protect users’ input information and usage records, collect and retain personal information in accordance with the principles of minimization and necessity, establish mechanisms for handling complaints and requests to promptly respond to individuals’ requests for correcting, deleting, or masking their personal information.
The Generative AI Measures provide that services providers should obtain an administrative license where applicable. There is currently no administrative license specifically for generative AI. Service providers can pay attention to the internet content provider license/record, public security Internet record, as well as the online culture operation license, online publishing service license and information network transmission audio-visual program license, etc., if applicable.
Companies that provide algorithm recommendation services within China should comply with the legal obligations under the Algorithm Provisions, including but not limited to establishing and improving algorithm management systems and technical measures, disclosing the relevant rules for algorithm- recommendation services, optimising algorithm models to present the information that corresponds to mainstream value orientation, and safeguarding users’ rights to be informed, to opt-out, to delete personal characteristics and to not be subject to “differentiated treatment.” Additionally, providers of algorithm recommendation services with an attribute of public opinion or social mobilisation capability shall complete algorithm self-assessment and file their algorithms with the authority.
At present, the Chinese government’s overall approach to algorithm regulation is to give priority to content management to supervise algorithms, taking into account other fields and scenarios, and emphasising the protection of the rights and interests of special groups.
At the same time, according to the current law enforcement trends and policy documents, the focus of work in the next few years will be on: (1) monitoring algorithm security risks; (2) conducting algorithm security assessments; (3) advancing algorithm filing.
*Information is accurate up to 27 November 2023