On the Legal Responsibility of Internet Service Providers

On the Legal Responsibility of Internet Service Providers

With the continuous progress of science and technology, the network industry has developed rapidly, but it is also accompanied by a large number of network infringement phenomena. Therefore, as a necessary participant in network behavior, network service providers often become defendants in litigation while providing carriers and platforms for the dissemination of network information. This paper intends to discuss the legal responsibility of network service providers and put forward its own judgment factors for discussion.

Keywords: network service provider; Fault liability; Pay attention to the role; Judgment factor

In recent ten years, with the continuous development of network technology, network infringement disputes have begun to appear, but first of all, it should be clear that these emerging infringement disputes still belong to the contradiction of legal relations in the traditional infringement field, but the behavior mode and media of the subject have changed. Therefore, the research on the legal liability of network service providers must still be based on the existing legal provisions in China. Article 36 of the newly promulgated Tort Liability Law of People's Republic of China (PRC) (hereinafter referred to as Tort Liability Law) involves relevant provisions. ①

First, the debate on the influence of topic classification.

At present, the concept of network service provider has been widely accepted and applied, which generally refers to the main body that provides related Internet technical services for network users and various services for users to publish, query and use related resources on the network. But in fact, Internet service providers are not a complete concept, and there are many classifications. According to different classification standards, there are different types of network service providers: for example, some scholars classify network service providers according to their different functions; (2) Some scholars also classify the services provided by Internet service providers according to their different contents. (3) Thus, the theory of dividing different tort liabilities according to different types of subjects has emerged. Obviously, the legal responsibilities of network service providers and host service providers who only provide network facilities are necessarily different.

Although this subject-based theory is reasonable, it is still flawed in my opinion. The reason is that network technology, as a scientific and technological means, must be constantly updated and developed, and the types of network service providers will continue to increase, and their functions will gradually become more complex and diversified. The same network service provider will also assume the functional roles of various network services at the same time. The exhaustive classification of types is not only technically difficult, but also not conducive to the judgment of tort legal liability. Therefore, the author believes that to judge the legal responsibility of Internet service providers, we should go back to their tort itself and judge according to their functions.

Therefore, Article 36 of China's Tort Liability Law does not classify all kinds of network service providers, but is collectively referred to as "network service providers", which is reasonable for its legislative consideration. Not classifying the types from the main body can avoid the trouble caused by the definition of a single type, and at the same time give judges discretion to judge the nature of the specific behavior of the network service providers involved, so as to determine their legal responsibilities. Take the most common copyright infringement in network infringement disputes as an example. Internet service providers who provide content services, that is, create, collect and edit works and information by themselves and publish them on the Internet for public browsing, downloading and other paid or free use, should naturally bear direct tort liability according to their nature. However, if the network service provider only provides link services, that is, it does not provide information directly, but provides a way to obtain relevant information content, so that users can consult relevant information content. It can be seen that this behavior is essentially just a program service and a technical auxiliary function. Therefore, it is much more complicated to judge the legal responsibility of such behavior. On the premise of fault liability, we need to consider the degree of performance of its attention. Therefore, it is difficult for the law to exhaustively stipulate the categories of all network service providers, and it is reasonable and effective to treat them differently only from the perspective of behavior and function.

Second, the application of the principle of fault liability imputation

The principle of imputation of legal liability of Internet service providers has gone through the development process from strict liability to fault liability. In the early days of Internet development, many countries adopted the principle of strict liability for Internet service providers in order to protect the interests of obligees to the maximum extent, which hindered the development of the whole Internet industry, because Internet service providers had to devote most of their energy to preventing infringement and avoiding taking responsibility, which would eventually hinder the scientific and cultural progress of the whole society. Today, the general attitude in the world has changed, and the principle of taking fault liability as the imputation of network service providers has been recognized.

It is in line with the meaning of legal justice to determine the imputation principle of network service providers as fault liability. From a legal point of view, the establishment of strict liability is to adapt to social reasons such as environmental pollution, industrial disasters and high danger brought about by the rapid development of society, and the tort liability of network service providers is obviously not among them; From a technical point of view, the vitality of network technology lies in its quickness and convenience. If it needs to review the contents published by users who provide their own services one by one to avoid infringement disputes under strict liability, it obviously violates its development purpose; From the perspective of interest balance, the purpose of standardizing network service providers is to balance the interests of network users, network service providers and the public, and strict liability cannot reasonably achieve this goal; From the perspective of comparative law, at present, some major countries and regions in the world tend to take fault liability for intermediate service providers, and the law clearly stipulates some liability limitation clauses to urge intermediate service providers to devote more energy to developing their service types and improving their service quality. Therefore, China's Tort Liability Law also adopts the principle of fault liability, and its paragraphs 1 and 2 all make it clear that network service providers should bear legal liability on the premise of knowing.

Third, the role of judgment factors in reasonable attention to affairs.

The second paragraph of Tort Liability Law stipulates the "notification-deletion" procedure, which is the usual safe haven principle. According to the notice of the obligee, the knowledge level of the network service provider can be effectively judged. However, it is obvious that there is an infringement situation in which the obligee has not effectively notified. At this time, the network service provider is not completely exempt, which involves the judgment of the "knowing" standard in the third paragraph of the Tort Liability Law. Although many scholars advocate that the word "know" is limited to "know" and does not include "should know", this limited explanation is only a measure taken by China's network industry in the emerging development period. As far as the long-term development trend is concerned, the criterion of "knowing" should include "should know". How to determine the reasonable attention of network service providers is a constantly changing category with the development of science and technology. Therefore, the author will put forward some suggestions on some judgment factors of reasonable attention to service for discussion.

1. Starting from the main body of the network service provider

To a certain extent, limiting the role of network service providers is first determined by their main characteristics. First, due to the limitation of technological development, the monitoring ability of network service providers has insurmountable limitations. Network service providers must rely on technical means to monitor the information passing through the system or network, so their monitoring ability depends on the technical means adopted. Although many service providers now use "filtering technology", that is, all information and information fragments pass through an electronic filter to automatically filter out infringing information, obviously, this operation is still subject to technological development. Therefore, when judging its function, we have to consider the development stage of the whole network technology industry. Second, Internet service providers need economic monitoring costs to monitor network infringement information. If the cost of manpower and material resources used for monitoring greatly exceeds its own operating profit, this is something that any network service provider will not pursue, and the law should not force it to give up the role-playing instinct of a rational economic man. Third, Internet service providers are only technical service providers, not professional lawyers or judges. Even experienced judges still need to consider various specific plot factors when deciding whether an act constitutes infringement, such as the originality of the work, whether the use of the work is limited by liability, the ownership of the obligee and the specific application of the law. Such a judgment is undoubtedly too demanding for a network service provider, and will even affect the development of the whole industry. Fourth, the qualifications and technical level of different network service providers are also uneven. Of course, we should not adopt a unified judgment standard for all providers. A small-scale network technology company and a professional multinational network company are definitely different in terms of resources, judgment ability and monitoring ability when providing network services. Therefore, we should pay more attention to some well-known and qualified network service providers. Finally, if the network service provider has taken its feasible preventive measures, it should naturally be considered that it has done its due attention. For example, network service providers installed a "filtering mechanism" according to their own conditions, or made a statement to remind users to prevent infringement. This should be regarded as an attention.

2. Start with the correct work itself.

It is beneficial to distinguish works of rights in different degrees. On the one hand, each infringement dispute involves different rights works. Some rights works are well-known, and the obligee has invested a lot of early publicity on them, or the obligee is a famous person, whose works have great social influence and the public has a high awareness of them. Accordingly, the degree of due diligence required by network service providers naturally needs to be improved. On the other hand, the degree of infringement is different each time. Taking copyright infringement disputes as an example, the uploader uploads a chapter or all the contents of the copyright work. In these two different situations, the latter needs to be stricter. After all, it is very difficult for Internet service providers who need to deal with a huge amount of information every day to upload only an excerpt.

3. Starting from the subject of the direct infringer

Internet service providers do not directly edit infringing information, but only provide a technical service for the direct infringer, that is, the uploader. For example, when the obligee carries out the notification procedure, the infringement is actually not qualitative, and it is difficult to confirm whether the uploader has infringement. If the network service provider takes measures to delete, block or disconnect the link at the request of the notifier, it will bear the risk of default in many cases. Therefore, it will fall into the dilemma of tort compensation and liability for breach of contract. Because of this, if the service requirements of network service providers are too strict, it will lead to the limitation of the freedom of the whole network and the defects of the development of network industry. At the same time, the protection of obligees should not be based on harming the general public interests and freedoms.

Four. conclusion

To sum up, network technology is constantly improving, and the network industry is also constantly developing. Emerging industries are bound to be accompanied by more emerging legal disputes, and the laws regulating the entire network environment will be gradually improved. The legal responsibility of network service providers needs to consider the development of various interests, and too strict or too loose standards are not appropriate. Therefore, judicial organs can only make specific judgments according to various specific factors under the law, thus creating vitality for the entire network legal environment.

Precautions:

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 a network user uses the network service to commit infringement, the infringed party has the right to notify the network service provider to take necessary measures such as deleting, shielding and disconnecting the link. If the network service provider fails to take necessary measures in time after receiving the notice, it shall be jointly and severally liable with the network users for the enlarged part of the damage.

② It can be divided into four categories: network facility operators, access service providers, host service providers and bulletin board system system operators, mail newsgroups and chat room operators. Hong Xue: Re-discussion on the Copyright Infringement Liability of Internet Service Providers, Science and Law Quarterly,No. 1 2000.

③ It can be divided into ICP, a network content provider, and Internet intermediary service providers (including access service providers and host service providers). Zhang Ling: Civil Liability of Internet Service Providers in Providing Transmission Services, Peking University Legal Information Network, July 3, 2002.

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