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ICP Regulations in China

ICP stands for Internet Content Provider. Is it a permit issued by the Information Technology and Chinese Ministry of Industry that allow China based websites to operate in China.

January 2013

A. ICP LICENCE/ ICP FILING

General principles

The criteria for obtaining an ICP licence or for ICP filing depends on whether the content of the website is “commercial” or “non-commercial” in nature:

  • ICP Licence for Commercial Services Commercial Internet information services refer to information, creation of web pages, and other services provided to Internet users for financial consideration. ICP licence is only opened to Joint Venture where the Chinese party owns at least 50% of the shares.
  • ICP Filing for Non-commercial Services Non-commercial Internet information services refer to those services that provide publicly available information that is accessible and free for Internet users.

Due to unclear definitions in the regulations and different interpretations of the local branches of the Ministry of Industry and Information Technology (“MIIT”), it is difficult to assess what is commercial and non-commercial Internet content. The criteria for the distinction should normally be whether the profit is solely derived from the provision of services via Internet or not. However the interpretation of the MIIT is different as it requires, for example, ICP licence for any e-commerce activity.

E-commerce

The Ministry of Commerce (“MOFCOM”) allows trading foreign invested enterprises (“FIE”) to engage in e-commerce business in China even without mentioning such activity in their business scope, except for FIE engaging exclusively in online sales that must have in their business scope the mention of “e-commerce” (by obtaining approval from the provincial-level MOFCOM).

Nevertheless, since certain local antennas of the Administration of Industry and Commerce (“AIC”) require the mention of “e-commerce” for FIE that engage in online sales, it is therefore better to have it mentioned in the business scope.

The national MIIT considers e-commerce websites as commercial and therefore, requires an ICP licence (which is only opened to joint venture companies where the Chinese party holds at least 50% of the shares). However, its Shanghai branch considers e-commerce websites as non-commercial and therefore, only requires an ICP filing.

B. PROCEDURES FOR ICP FILING AND ICP LICENCE

ICP Filing

The mandatory process is to go through an Internet Service Provider (“ISP”) authorized by the MIIT or its local provincial branch, such as China Telecom and China Unicom for example.

It is no more possible to apply online for ICP filing.

Any company applying for ICP filing must provide certain documents to an ISP that will proceed with a preliminary examination of the file within 5 days after its submission. If the documentation is approved, the ISP will communicate it to the MIIT or its local provincial branch for its final examination. In case of approval, an ICP filing number shall be delivered within 20 days after the submission of the documentation to the MIIT.

ICP Licence

Any company applying for an ICP licence must priory obtain an ICP filing number.

A distinction is made by the MIIT between Internet websites that are accessible from a sole PRC province and the ones that are accessible from several PRC provinces or nationally. The first ones must file their ICP licence application with the provincial-level MIIT and the latter ones with the national-level MIIT. This distinction is, however, purely theoretical and applications are usually made at national-level. The requested documentation is as follows: applicant company’s business licence, articles of association, feasibility report, capital report status, report on the taken measures by the company to ensure information security and veracity of the services offered on its Internet website.

It is prohibited for companies to share the same ICP licence or number, unless the companies are affiliated.

Thanks to Emmanuel Meril, Lawyer from LPA

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Emmanuel MERIL Partner - China

LPA, Lefèvre Pelletier & associés Shanghai - Guangzhou - Hong Kong - Paris - Frankfurt - Algiers - Casablanca

41/F, Hong Kong New World Tower, Unit 4102, 300 Middle Huaihai Road, Shanghai 200021 Tel: (86 21) 6135 9966 - Fax: (86 21) 6135 9955 Mobile: (86) 1380 164 3875 E-mail: emeril@lpalaw.com.cn