International Trade Lawmaking @ Beijing Normal University

追求卓越，协作共赢

北京师范大学—联合国国际贸易法委员会

联合认证项目[1]

国际电子商务法：理论与实践

一、目标 与使命

为了适应我国电子商务国际贸易的飞速发展，促进我国机构与企业了解电子商务的国际法及主要国家与地区的法律，更积极地参与有关国际律规则的发展进程，维护我国重要的经济利益，北京师范大学与联合国国际贸易法委员会合作，于2013年10月签署合作协议，建立了全球首个专门关于“国际电子商务法”的联合认证项目，由联合国国际贸易法委员会亚太中心、北京师范大学国际交流与合作处及法学院作为支持单位，联合国国际贸易法委员会电子商务工作组负责人卢卡.卡斯特拉尼博士与北京师范大学互联网政策与法律研究中心薛虹教授担任项目的联合主任。作为中国协助联合国向发展中国家提供法律技术援助的有机组成部分，联合认证项目已经向柬埔寨、哈萨克斯坦、斯里兰卡等国家政府官员提供国际电子商务法的能力建设法律培训及该国电子商务立法的咨询与建议。国际电子商务法联合认证项目从事电子商务立法国际比较研究及国际法律研究，正在成为我国与国际组织与国外机构进行电子商务法国际交流与合作的桥梁与纽带。

二、合作基础

联合国国际贸易法委员会是联合国系统在国际贸易法领域中的核心法律机构，在全球拥有广泛成员，四十多年来在全世界范围内专门从事商法改革，致力于协调各种国际商务规则并使之现代化。除此之外，联合国国际贸易法委员会还可以提供法律技术支持，以促进在商业交易领域制定现代、公平、和谐的法律规定的法律改革计划。

联合国国际贸易法委员会起草了《电子商务示范法》及《电子商务公约》等重要的国际电子商务法文件，并正在拟定新的国际法律规范。与北京师范大学共同打造的这一联合认证项目，将为电子商务领域，特别是跨境电商，带来全新知识与智慧体验。

三、课程内容

项目共有6个课程单元，在每学年秋季/春季学期的两周内集中授课。可同时获得北京师范大学的学分。学生也可选择参加任一学期的课程学习。

课程内容单元如下：

1. Legal Issues in Cross-Border E-Transactions （跨境电子交易法律问题）

2. Legal Issues in Cross-Border Data flow （跨境数据流通的法律问题）

3. Dispute Resolution For Cross-Border E-Commerce（跨境电子商务的争议解决）

4. Internet Governance in E-Commerce （电子商务中的互联网治理问题）

5. Intellectual Property Issues in Cross-Border E-Commerce（跨境电子商务的知识产权法律问题）

6. Governmental Regulation on Cross-Border E-Commerce （跨境电子商务的监管法）

四、教学管理和师资力量

联合国国际贸易法委员会与北师大共同组建国际专家顾问委员会，监督及保障教学质量。北京师范大学国际交流与合作处、北京师范大学法学院为项目提供支持。

Professor Jianrong Yu, from Chinese Academy of Social Science, launched a campaign to save “children beggars” via micro-blog system.

It’s reported that more than 200,000 children were missing in China every year. The number is astonishing. Most missing children were kidnapped and sold to gangsters who use children to beg for money on the streets. There has been a considerable large black market of children trafficking operating many years. The children beggars, as young as 3 or 4 years old, are in miserable condition, frequently being beaten, starved and abused.

Prof. Yu’s campaign is let the people to photograph the children beggars on the streets and post the photos on micro-blog so that the parents of the missing children could find the clue of their babies. Prof. Yu’s call was warmly responded by more than 55,000 micro-blog posts with 800 photos of children. It’s reported that several children were indeed saved by the information revealed on the micro-blog.

However, the civil society campaign could make mistakes. For example, the parents from Shanxi discovered a boy beggar in a photo taken in Zhuhai looking extremely similar to their baby and reported to police. The local police immediately arrested the man who led the said children beggar and declared a success of micro-blog salvation. Sadly, it was too early to celebrate for the family reunion.  The boy was not the son of Shanxi parents.

There are other concerns over the campaign. All the children’s photos are published online. Does it violate the children’s privacy and minor’s legal protection? Would the photos be utilized for illegal purposes, such as commercial ads or extortion by organized crimes? Who is responsible for protecting the children’s personal information?

Fortunately, the campaign has noted these issues. Prof. Yu said a database of missing children will be set up and people’s submissions will not be publicly accessible anyway. Then it arises other issues, such as transparency of information and sustainability of the operation.

Some Congressmen have urged the police to take more effective actions against children kidnapping and trafficking and improve the social welfare system to help poor children, particularly in migrant workers’ families.

Professor Cai who publicly called for cancellation of the so-called Golden Week (week-long public holidays) in China found himself defamed and cursed by a large number of people on a BBS named after him. The furious Professor sued the BBS service provider, Baidu (one of the largest Internet company in China), for defamation. The first-instance court recently rendered the decision that Baidu was not the direct tortfeasor, neither did it knowing providing service to defame Prof. Cai. The court noted that Baidu’s act of taking timely measures to prevent the further spread of defamatory information after receiving valid notification from Prof. Cai was capable of proving its innocent. Interestingly, the court dismissed Prof. Cai’s claim for deleting the relevant BBS in the same name as him, because name of the BBS, per se, was not infringing and the people had the right to make comments on public issues or figures. However, the court ruled that Baidu must, within the capable of network technology, assume the obligation of a honest manage to identify its subscribers who had posted the defamatory information. Prof. Cai’s agent declared to appeal against the decision.

The decision rings the alarm for Internet users. With the implementation of the Tort Liability Law, netizens are exposed to more liabilities for infringement against civil rights. Previously, they were only subject to copyright enforcement. Now they must watch out any other rights, such as rights for reputation, honor, portraits and names. A service provider’s obligation to disclose users’ identities would have serious impact on privacy. In the above-mentioned case, the court demanded Baidu to identify all the persons who had cursed, insulted or verbally threatened Prof. Cai. However, how would Baidu judge if a post is insulting, defamatory or threatening? What if Baidu makes arbitrary judgment and unreasonably disclose some users’ personal information to Prof. Cai?

What is the most sensational ICT news in China this week? Of course, it is the War between two animals–Penguin representing Tencent and  Tiger for Qihoo. After sending its 0.6 billion Chinese IM users a “Public Condemnation against Qihoo 360′” via pop-up windows, Tencent, which has been using the logo of two cute-looking penguins, publicly announced that it stops inter-operating with Qihoo’s 360’s newly released security program, Kou Kou Bodyguard. Tencent condemned Qihoo (Chinese name “Magical Tiger”) for hijacking users’ accounts through striping ads attached to QQ and redirecting QQ users to 360 browers. Qihoo that developed from an anti-virus company to the second large security and online assistance program service provider to 0.5 billion Chinese users denied the allegation that Kou Kou Bodyguard was a Trojan program to steal users’ information but has removed the program offline.

The War between  two leading Internet companies have devastated many Internet users, particularly who  had solely relied on these domestic services on IM, chatting, searching and email, etc. Under Tencent’s unilateral announcement, any user who has Qihoo 360 installed on the computer will not be able to login Tencent’s popular IM program QQ. Tencent has sued Qihoo for unfair competition and other claims to Beijing Court. Meanwhile, angry QQ users (especially those who paid fees to Tencent) have gather to bring collective action against Tencent. Ministry of Industry and Information Technology and Ministry of Public Security have summoned both parties for investigation.

For more information, please refer to “QQ-360 Battle Escalates into War” on WSJ.

The case shows the poor legal protection on privacy and personal information for more than 1 billion Internet users in China. It is widely believed that Internet giants are all blatantly detecting, collecting and trading their users’ privacy information for profit. In this case, tens of million of users become the virtual hostage of commercial strategy. Internet companies’ tremendous technical capacity can be a threat of the users’ choice and legitimate interest.

How would Tencent implement its anti-360 campaign? How did it detect and verify whether a user has uninstall Qihoo 360 or not? The answer is that Tencent’s widely used IM client integrates QQ Housekeep (formerly named QQ Doctor) that can automatically scan users’ drive and detect the files and programs installed on users’ computers.  Qihoo 360 had labelled QQ Doctor as a privacy-infringement program but Tencent rebutted that 360 lied for fear of competition in security product market.

In addition, malice competition actions not only directly hurt the consumers but potentially endanger the network security and stability. Civil disputes may deteriorate into cyber-crimes. Common use of cloud computing gives Internet giants “invisible hand” to manipulate, control and imperil billion’s of users. When data, computer and usage are more beyond the control of users, we have good reason to worry who is really in control.

The competent governmental agency, MIIT, finally stepped in the dispute. In an official announcement made on November 21,  both parties were condemned for acts of unfair competition and bad social impacts. Both were required to stop any acts that may damage the legitimate interests of users, stop mutual attacks and apologize to the users. The announcement also asked both to take appropriate make-up measures.  Interestingly, MIIT ordered both to carefully learn relevant laws and regulations and improve their moral construction. Let alone the morality standards that are apparently in doubt, people may wonder what kind of laws and regulations they should “carefully learn”. Obviously, there has no law or regulation to touch a commercial operator’s proactive or aggressive self-defensive actions.