The tort liability of network service providers is mainly caused by why they provide services and convenience.

First, the responsibility of network service providers in trademark infringement

Service providers of online trading platforms refer to computer network systems that provide cyberspace, technology and trading services for various online transactions. In practice, most online trading platform providers are not directly involved in infringement activities, so the court mostly determines whether there is infringement according to the indirect infringement theory, that is, whether the online trading platform service provider lures, instigates or intentionally helps others to directly infringe. Indirect tort liability mainly includes substitute tort liability and auxiliary tort liability.

(A) Subrogation tort liability

Subrogation tort refers to the tort that the actor has the ability and right to supervise others' behavior, but fails to find and effectively stop others' infringement in time and obtain direct economic benefits from it. In practice, the main actor of subrogation infringement has the right and ability to supervise the infringement behavior of the direct infringer and obtain direct benefits from it, which is an important element of assuming vicarious liability. The author believes that the law should not require online trading platform providers to undertake monitoring obligations. The reasons are as follows: 1) It is necessary for online trading platform providers to provide information release, information transmission, contract conclusion and storage services for trading parties. They don't participate in specific transactions, but only provide a platform for traders to publish goods or service information, so the online trading platform providers are passive network service providers rather than content providers; 2) Faced with hundreds of millions of online commodity lists, it is time-consuming, laborious, costly and impossible to require online trading platform providers to review them one by one. If the law stipulates that online trading platform providers have the obligation of monitoring, it will greatly increase the cost of online trading, reduce the efficiency of online trading, and eventually lead to the closure of some auction websites. Even if the online trading platform provider arranges a large number of employees to monitor the network and audit every commodity, it can't accurately judge the authenticity of every commodity like the trademark owner. Therefore, it is unrealistic to ask the providers of online trading platforms to undertake monitoring obligations.

Regarding whether the actor obtains direct economic benefits, some scholars believe that the service provider of the online trading platform has agreed with the seller of the goods in advance that when the goods are sold, the settlement system of the online trading platform will automatically deduct a certain proportion of the money paid for the service as a return, which belongs to the cost of providing network information services in nature, rather than the cost of sharing the goods. Therefore, it can't be considered that they have obtained direct economic benefits.

(2) Auxiliary tort liability

The condition of accessory tort liability is that the actor knows that others are committing direct tort and helps them. Knowing is a subjective psychological state, including knowing and should know. The so-called know, that is, actually know, contains two meanings: 1) directly and clearly know a fact or situation; 2) Knowing some information or situations will cause ordinary rational people to further explore or inquire about the facts. In other words, the actor has clearly understood the specific infringement facts. The so-called "should know" refers to the presumption of knowledge, that is, for the fact that someone can know based on reasonable care, the law presumes that he should and has known the fact, regardless of whether he actually knows it or not. That is to say, if a reasonable person can discover the facts of infringement while fulfilling his duty of care, it is legally presumed that he should know the facts of infringement. This is the imputable fault standard.

Second, what are the types of network infringement?

Internet users use the Internet to infringe upon the civil rights and interests of others, which can be roughly divided into the following types:

(A) is an infringement of the right to personality. Mainly as follows:

1. stealing or counterfeiting other people's names, infringing on the right to name;

2. Using another person's portrait without permission, infringing on the right of portrait;

3. Publish articles that attack, slander others and infringe on the right of reputation;

4. Illegally invade other people's computers, illegally intercept other people's transmission information, disclose other people's personal information without authorization, send a large number of spam, and invade privacy. The increasingly developed network has condemned the uncivilized and immoral phenomenon of society to a certain extent, but is human flesh search legal because of the lack of necessary legal norms? How to judge whether the network information is leaked? The Tort Liability Law stipulates the network tort liability for the first time. The regulation later clarified that Internet users and Internet service providers should bear tort liability for using the Internet to infringe upon the civil rights and interests of others, and stipulated the handling principles, which filled the gap in the infringement of others' reputation rights by the Internet. Typical case: Not long ago, a post of Zhengzhou police sweeping pornography was circulated on the Internet, which contained many photos and videos of investigating pornographic places on the spot, and even nude photos of prostitutes. How to protect the legitimate rights of the public in the era of Internet prevalence? How to supervise the network as a media? As we all know, the video and photos in this case involve the right to privacy, and netizens still publish them publicly while the website knows about it but does not take any measures.

Netizens and websites should bear joint and several liability for such acts that infringe upon the civil rights and interests of others.

(2) Infringement of property interests. Based on the convenience and commercialization of online activities, it is not uncommon to infringe on property interests through the network, such as stealing funds from other people's online banking accounts, and the most typical one is infringing on online virtual property, such as stealing other people's online game equipment and virtual currency.

(3) Infringement of intellectual property rights. Mainly manifested in the infringement of copyright and trademark rights of others:

1. Copyright infringement. Such as unauthorized digital transmission of other people's works, circumvention of technical measures, infringement of databases, etc.

2. Infringement of trademark rights. Such as using other people's trademarks on the website, deliberately making consumers mistakenly think that the website is the website of the trademark owner, and maliciously squatting domain names that are the same as or similar to other people's trademarks.

Article 36 of the Tort Liability Law of People's Republic of China (PRC) * * * Internet users and Internet service providers who use the Internet to infringe upon the civil rights and interests of others shall bear tort liability.

If readers need legal help, they are welcome to seek legal advice.

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The Civil Code came into force on 202 1 1, and the Marriage Law, Inheritance Law, General Principles of Civil Law, Adoption Law, Guarantee Law, Contract Law, Property Law, Tort Liability Law and General Principles of Civil Law were abolished at the same time. If it involves the infringement problem stipulated in the civil law #

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