China’s NRTA Published Draft Foreign Content Regulation

On 20 September 2018, China’s National Radio and Television Administration (“NRTA”, formerly known as the State Administration of Press, Publication, Radio, Film and Television or “SAPPRFT”) published the Administrative Provisions on the Introduction and Transmission of Foreign Audio-visual Programs (Public Comment Draft) (“Draft Provisions”), which will replace the current Administrative Provisions on the Introduction and Broadcasting of Foreign Television Programs (Order of the SAPPRFT No. 42, issued in 2004, “Current Provisions”). While the Current Provisions mainly apply to radio and TV broadcasters (such as TV stations and paid cable digital channels) when introducing foreign TV programs to the Chinese market, the Draft Provisions further extend to the introduction of foreign films, TV series, cartoons, documentaries and other audio-visual programs including those in the fields of education, science and technology, culture, arts and sports (“Foreign Programs”). The Draft Provisions would apply to the introduction of Foreign Programs by radio and TV broadcasters and “Network Audio-visual Service Providers”, a category that includes OTT, IPTV, online and mobile audio/video service operators.

The NRTA previously used the Current Provisions as a starting point to regulate Network Audio-visual Service Providers in practice. In many ways, the Draft Provisions do not substantively change the Current Provisions, but rather adjust certain terms to better account for practical regulatory requirements developed by the NRTA alongside the Current Provisions. For example, the prohibition on the introduction of foreign political and current affairs news programs by Network Audio-visual Service Providers in the Draft Provisions has drawn widespread media attention. However, this prohibition is nothing new – it is already provided in the Current Provisions and is applied to Network Audio-visual Service Providers by the NRTA.

Some of the key provisions and changes introduced by the Draft Provisions are set out below.

• Foreign political and current affairs news programs: Radio and TV broadcasters and Network Audio-visual Service Providers continue to be prohibited from introducing political and current affairs news programs under the Draft Provisions.
• Total air time of Foreign Programs: Under the Current Provisions, the total air time of foreign films and TV series (which include TV dramas and sitcoms, but exclude talk shows, competition/game shows and reality TV) broadcast by each channel could not exceed 25% of the channel’s total daily air time for films and TV series. Any Foreign Programs other than films and TV series were not permitted to exceed 15% of the channel’s total air time for that day. One interpretation of the Draft Provisions, however, is that the restriction on air time of Foreign Programs will be slightly relaxed, as the Draft Provisions require that foreign films, TV series, cartoons, documentaries and any other categories of Foreign Programs broadcast by TV channels may not exceed 30% of the total air time on the same day, or the total programs of the same category available for view on the same day.
• Prime time broadcasting restrictions: Under the Current Provisions, a TV station is not allowed to broadcast foreign films or TV series during prime time (19:00 – 22:00) without the NRTA’s approval. The Draft Provisions further prohibit radio and TV broadcasters from broadcasting all foreign programs during prime time. It remains unclear whether these prohibitions would apply to Network Audio-visual Service Providers such as IPTV broadcasters, OTT service providers, video streaming website/App operators and other service providers that broadcast Foreign Programs via online or mobile networks and other information networks.  
• “Whitelist” system: The Draft Provisions provides that the NRTA would establish a “whitelist” for Foreign Programs. The list would consist of a regularly updated catalogue of Foreign Programs approved for broadcast on information networks. Foreign Programs not included in the list cannot be broadcast.  
• Review and approval of programs: The Draft Provisions include procedures for Network Audio-visual Service Providers to review and approve the content of Foreign Programs to be introduced, which are the same as those currently in place. First, Network Audio-visual Service Providers must establish systems for content management and technical support, such as program content editing and review,safe broadcasting, and copyright protection. They also must establish an editor approval system for the review and approval of program content by in-house professional program editors before broadcasting and re-broadcasting any program. The chief editor should be responsible for the review and approval system.

In addition to the Draft Provisions, the NRTA also published the Administrative Provisions on Foreign Personnel’s Participation in the Production of Radio and Television Programs (Public Comment Draft) (“Foreign Personnel Provisions”). The Foreign Personnel Provisions relax some previously strict regulations. For example, for domestic TV series, foreigners may comprise a maximum of one fifth of the total number of production personnel of the same category. Additionally, the number of personnel from Hong Kong, Macao and Taiwan is no longer subject to any restrictions (it used to be five people for each domestic TV series). However, the Foreign Personnel Provisions set out requirements for foreign personnel when producing radio and TV programs, including respecting and safeguarding national unity, safeguarding sovereignty and territorial integrity, not violating the public order, and having no record of violating laws or regulations. These provisions demonstrate a tightening of the NRTA’s regulatory and policy guidance over radio and TV programs.