Chinese consumers who have purchased and have used mobile phones/devices (including smartphones, smart tablets, and smart watches) often find that said phones/devices include pre-installed applications. These applications may be core to the function of the phone/device or, alternatively, be included by the manufacturer/distributor to provide value-added services/functionality to the user. There has been, however, a growing concern amongst Chinese users of such phones/devices in regards to certain of these pre-installed applications whereby users claim that said applications may be carrying out unwanted functions such as monitoring (and, in some cases, stealing) their personal data or simply taking up unnecessary bandwidth. Such users would, firstly, like to be informed of the presence of such applications upon purchase and, if desired, be given the opportunity to actually uninstall these applications. Legal claims involving such pre-installed applications have, in certain cases, been the basis for litigation in the P.R.C.With this as a background it is not surprising that P.R.C. government has responded with proposed regulatory guidelines for such pre-installed applications, as will be discussed as follows.
As released by the Ministry of Industry and Information Technology (“M.I.I.T.”) in late 2015 for comments, the Draft Regulation for Mobile Smart Device Applications (APP) for Pre-installation and Distribution (hereinafter “Draft APP Regulation” or, in its enacted form as “APP Regulation”) proposes a number of requirements which would significantly impact the current business models/product offerings of smartphone/smart device providers, as well as smartphone/smart device application providers, in China.This Draft APP Regulation also provides the M.I.I.T. with broad powers for oversight and enforcement. Some of the key provisions of the Draft APP Regulation which address the above-noted concerns in relation to pre-installed applications shall be discussed herein, include the following.
Article 5 (2) of the Draft APP Regulation provides that:
“…mobile smart device application software provided by manufacturers and suppliers of internet services must meet the requirements of the relevant standards, must not commit actions that infringe the legal interests of users or compromise cyber-security such as: to call device functions irrelevant to the services supplied, to mandatorily bind irrelevant application software, to collect and/or use the personal information in unauthorized manner without explicit notification and consent of the users, to mandatorily open application software or to send business information in violation of regulations.”
These broad provisions of the Regulation place wide-ranging duties upon “manufacturers and suppliers of internet services” and violation of such provisions could potentially lead to a litigation claim being raised, such as under the Consumer Rights Protection Law of the P.R.C.
Additionally, Article 5(3) provides regulations governing the process for:
“…collect[ing] charges for mobile smart device application software [such that it should include] necessary technical measures to enhance the security protection of the payment process, preventing it from being altered, counterfeited or abused, avoid unclear charges [and that] corporations that collect the payments should preserve the data of user confirmation and original payment data for at least 5 months and provide a convenient way for users to check [payment data]”.
And Article 5(4) is targeted at mobile phone/device manufacturers and states that they must:
“…take effective measures to constrain agents from installing application software in mobile smart devices without the consent of the users and inform users of the possibility and risk of the device being installed with application software in the processes such as sales and what response to undertake.”
In sum, the provisions of Article 5 place significant requirements upon mobile phone manufacturers/distributors. In many cases said manufacturers/distributors may already be in compliance with these provisions, but in certain cases these provisions may necessitate a change to their respective current business models/offerings.
The Draft APP Regulation goes further with respect to these pre-installed applications in that it requires not only that the apps not infringe upon users’ rights when in use, but also that users should be duly notified of their presence and their nature. Article 6 contains stipulations directed at manufacturers and “internet information services” providers (such as app stores) that they should notify users of the:
“mobile smart device application software provided by means such as user notification, corporate website, etc. The information should include: name of the app, functional description, uninstallation method, information of the developers [of the app], installation and a list of the software to run, so that the user can be explicitly notified (by the manufacturer and supplier) of the content, aim, method and range of the user’s personal information collected and used by the application software.”
Furthermore, Article 6 stipulates that “manufacturers should provide a list of pre-installed software in the device product manual” and that such “mobile smart device application software involving charges should strictly abide by relevant regulations such as explicit marking of the prices. Prices and methods of payment must be explicitly stated… [and] only after the confirmation of the users can they be charged.”
These latter provisions under Article 6 address multiple concerns of users with respect to their being charged for these applications, such as where users may be charged without their knowledge or consent.
Now, as to the desire of users in certain instances who wish to uninstall these pre-installed applications, Article 7 states that the “manufacturer and supplier of internet information services should ensure the mobile smart terminal application software other than basic functional software can be uninstalled.” This provision addresses two key issues. Firstly, it makes clear that non-“basic functional software” should be able to be uninstalled by the user. Secondly, it defines, under Article 7(1) “basic functional software” as:
“mobile smart device application software ensuring the normal functioning of the hardware and operating system of the mobile smart terminal, mainly including basic components of operating system, applications ensuring the normal functioning of smart terminal hardware, basic communication applications, downloading path of application software, etc. Among the pre-installed basic functional software realizing the same functions, at most one can be set as un-installable.”
Furthermore, Articles 7(2) and 7(3) note that:
“manufacturer and supplier of internet information services should make sure that the mobile smart device application software provided other than basic functional software can be conveniently uninstalled by users without influencing the normal functioning of the mobile smart terminal, and the files adjunct to the software in the mobile smart terminal like resource files, configuration files and user data should also be conveniently uninstalled and deleted.”
“manufacturer should ensure the uninstalled pre-installed software is not mandatorily recovered during the upgrading of the operating system of the mobile smart device.”
It should be noted that the Regulation stresses that such un-installation should be “conveniently” achieved by the user. And, furthermore, this software should not be re-installed upon upgrading of the operating system of the device.
The period for comments to the Draft APP Regulation ended on December 18, 2015 and it is possible that the final version will be enacted relatively shortly thereafter (though there is no certain date). It is also quite possible that the final version of the APP Regulation will be similar to that of the draft version. If this is the case, smartphone/smart device manufacturers, as well as app stores and other relevant entities may face significant challenges if they are to comply with the new requirements under the APP Regulation.
Note: This publication is for informational purposes only and it does not in any way constitute a legal opinion.
Editor’s note: This article was simultaneously published on Chinalawinght.com
Ma Si, China Daily, Empowering users to tame pesky pre-installed apps, China Daily, January 4, 2016, page 13.
See Yao Yi v. Apple Electronic Products Commerce (Beijing) Co., Ltd., Shenzhen Fengchi Telecommunications Development Co., Ltd., and Li Chunlin (case number (2014) SFFMYCZ No. 2798) where the court found for the Defendants.
Ministry of Industry and Information Technology of the P.R.C., Draft Regulation for Mobile Smart Device Applications (APP) for Pre-installation and Distribution, promulgated on November 18, 2015 as a draft for comments.
Id. at Art. 5(2).
Standing Committee of the National People’s Congress, Consumer Rights Protection Law of the PRC, Decision of the Standing Committee of the National People’s Congress on Revision of the Consumer Rights Protection Law of the People’s Republic of China, last amended on October 25, 2013, effective March 15, 2014, at Art. 48.
Id. at Art. 5(3).
Id. at Art. 6.
Id. at Art. 7.
Id. at Art. 7(1)
Id. at Art. 7(2).
Id. at Art. 7(3).