January 2022
Pei-Ching Ji, Jaime Cheng, and Weke Chen
The National Communications Commission (the “NCC”) released a draft framework for the Digital Communication Services Act (the “draft Act “) on December 29, 2021. The full text of the draft Act will be subsequently released after its adoption at the NCC Commissioners’ Meeting and the completion of the law formulation procedure.
The objectives of the draft Act framework are to maintain online freedom of speech, promote the free flow of information, and protect the security of the digital environment. To protect the security of the digital environment, the Manila Principles, the Santa Clara Principles, the draft Digital Services Act of the European Union, and other relevant international legislation served as references in the regulation of intermediary digital communications service providers pursuant to a proactive, self-regulatory direction. The intermediary digital communications service providers will take initial action to handle reports from certification bodies or restrict user information while abiding by their transparency obligations; online content will be regulated by the central competent authority of the relevant substantive law, who will also be authorized to restrict illegal online content under its jurisdiction through court procedures.
The draft Act is envisioned to contain 11 chapters in total, the key points of which include: The maintenance and protection of basic rights; the safe harbor elements for intermediary digital communications service providers; the obligations of intermediary digital communications service providers, online platforms and designated online platforms; public-private collaboration efforts; the establishment of a dedicated agency (mainly to promote and help entities to establish their self-regulation mechanisms); and relevant penalties.
According to the press conference after the 996th Commissioners’ Meeting of the NCC on December 29, 2021 and the relevant press releases, the intermediary digital communications service provider entities to be regulated may be categorized into the following types:
1. Connection service providers: HiNet, Kbro Broadband, etc.;
2. Cache service providers: Taiwan Fixed Network, Asia-Pacific Telecom Group’s Gt Smart Life, etc.;
3. Data storage service providers: VMware, Red Hat, etc.;
4. Online platform service providers: Dcard, Yahoo! Auctions, YouTube, Meta, etc. While some may also be classified as data storage service providers, due to their unique characteristics, they need to be regulated separately. For certain larger online platforms, the NCC will name them in a separate public announcement as “designated online platform service providers” for enhanced regulation. However, the criteria for being classified as a “designated” online platform service provider have yet to be confirmed.
The draft Act imposes different obligations on the above-mentioned intermediary service providers:
1. Connection service providers: A court order is needed before they may remove any user information, and they shall assume certain information disclosure obligations, such as submitting annual transparency reports, Terms of Service, and other information.
2. Cache service providers: A court order is needed before they may remove any user information, and they shall assume certain information disclosure obligations, such as submitting annual transparency reports, Terms of Service, and other information.
3. Data storage service providers: A court order is needed before they may remove any user information, and they shall assume certain information disclosure obligations, such as submitting annual transparency reports, Terms of Service, and other information. In addition, they are obliged to provide notifications and responses when restricting user information, disclose why the user information is being restricted and possible remedy channels, and post the restricted information or content in a common database, among other obligations.
4. Online platform service providers: In addition to the obligations of a data storage service provider, they must submit additional transparency reports, disclose online advertising, provide of internal and external remedy channels for users, put a high priority in processing of reports from certification bodies, provide information transparency of sellers on the platform, provide protection against service and mechanism abuses, among other obligations.
5. Designated online platform service providers: In addition to the obligations of an online platform service provider, they will also need to conduct risk assessment, risk management and independent auditing, as well as provide notification to users regarding their information and advertisement recommendation systems, among other obligations.
The above contents of the draft Act are for reference purposes only. The actual contents shall be based on the draft provisions.
For other related information, please refer to the NCC press release dated December 29, 2021: https://www.ncc.gov.tw/chinese/news_detail.aspx?site_content_sn=8&is_history=0&pages=0&sn_f=46983