On Criminal Liability Of Internet Service Providers

Internet Service Providers are the natural persons or units who provide automatic access,automatic transmission,caching,information storage,information search,link,file sharing services for those who want to access,cache,store,post and search information through internet.According to the technical function,Internet Service Providers can be divided into internet access providers,internet cache providers,internet storage providers,and information location tool providers.Network harmful behavior include the infringement of computer data and system,illegal-content related harmful behavior,copyright and relating rights related harmful behavior,infringement of personal information and privacy.Within these network harmful behavior,some are done directly by Internet Service Providers,some are done by users who are leaded by Internet Service Providers,some happen because of human intervention to objective neutral search results by Internet Service Providers,some happen because Internet Service Providers fail to fulfill information network security management obligation.Understanding the role of Internet Service Providers in network harm behavior is the starting point of research on the criminal liability of Internet Service Providers.Criminal policy is the guiding rule of criminal liability,at the same time,criminal liability manifests,tests and corrects criminal policy.On the whole,criminal policy and criminal liability are interdependent.Within the basic criminal policy of tempering justice with mercy,the specific criminal policy of cyber-crime puts more emphasis on strict direction,being too strict while less lenient.From a comprehensive views of social developing,social security and technology,the specific criminal policy for the criminal liability of Internet Service Providers should be lenient in the whole and be strict for specific reasons.For example,when Internet Service Providers engage in the harmful behavior which may cause severe and far-reaching damage such as broadcasting child porn and terrorism materials,they should be punished strictly.United States pays more attention on the balance of technology development,free speech and children welfare while putting criminal liability on Internet Service Providers,establishes the hierarchical liability system according to the technical function of Internet Service Providers,and summarizes the knowledge rules of Internet Service Providers constantly.In Germany,the theories of control,neutral behavior and jurisdiction are much beneficial for differentiating the liabilities of Internet Service Providers of different levels,punishable neutral behavior and unpunishable neutral behavior,and dealing with the harmful behaviors of Internet Service Providers which cross the border.In Japan,there is no specific law about the criminal liability of Internet Service Providers.The judiciary authorities depend on the rules of abettor in criminal law,related regulation in affiliated criminal law and the theories of abettor to deal with the criminal liability of Internet Service Providers.Japan employs the rule of high probability to evaluate the Mens Rea and harmful consequence of Internet Service Providers,and restrict neutral behavior to become crimes through Mens Rea,which are worth learning.Criminal obligation is the footstone of criminal liability system.The theory of Duty Violation illustrates the nature of crime.Criminal liability can only arise if a crime is committed in violation of the criminal obligation.Criminal obligation is determined by criminal law,however,criminal law only punishes those acts which cannot be punished by other laws.Therefore,the obligation presupposition of criminal liability comes from other laws.Generally speaking,only the obligations prescribed by the laws and administrative regulations can become the obligations of the criminal law.While in special circumstances,the obligation of the duties or business requirements outside the provisions of the laws and administrative regulations shall also become the obligations of the criminal law.Why should Internet Service Provider take criminal obligations?There are three theories:the theory of Opener and Controller of Danger Source,the theory of Gatekeeper,the theory of Internet Service Providers Centralism.We adopt the third proposition.Currently,the criminal obligations of the Internet Service Providers in our countries are mainly Discovery-Takedown,the protection and management of user information,cooperate with relevant departments to perform their duties.There are two approaches of the typed obligations for Internet Service Providers in our country,one is the approach of administration,the other is the approach of technical function.The latter one set differentiate obligations based on the technical function of different Internet Service Providers,the degree of distance of information,and the degree of control of information,establish the hierarchical liability system.Of course,the latter one is much more reasonable.The basic manifestation of the harmful behaviors of Internet Service Providers is act and omission.The crime of Use Information Network Illegally and the crime of Aiding Information Network Criminal Activities are the crimes directly related to Act.Omission can also be divided as pure omission and impure omission.The typical crime of pure omission is the crime of Refusing to Fulfill the Obligations of Information Network Security Management.The non-typical crime of impure omission is Disseminating Pornographic Materials for Profit,which is used in the criminal case of QVOD player.We should limit the boundary of impure omission in judiciary.Possession is not suitable to be the harmful behavior of Internet Service Providers.When Internet Service Providers cache and store materials that contain illegal content and don’t clear in time,it is omission.The reason for omission is that Internet Service Providers didn’t prevent users from accessing illegal content according to statue and administrative orders.The harmful behavior of the Internet Service Providers in joint crime can be manifested as practicing,aiding and instigating.The crime of Aiding Information Network Criminal Activities is manifested as practicing.When the search engine makes false advertising while providing bidding ranking service,it may constitute the crime of false advertising.Traffic hijacking by an internet access provider may constitute the crime of damaging computer information systems.There are lots of criminal cases of which Internet Service Providers are aiders all over the world.As to whether neutral action constitutes a helping offense,we should consider the physical and psychological causality between neutral behavior and criminal behavior from objective aspect,and consider whether the people who did neutral behavior have knowledge of practicer’s determination to commit crime.Internet Service Providers do have the Actus Reus of abetting,but cannot be the instigator for lacking of intention of solicitation.When the services provided are mainly used for criminal conduct,Internet Service Providers can constitute a helping offense.How to judge the causality between omission&aiding and result has long been the difficult problem in both criminal theory and judiciary.As to the causality between omission and result of Internet Service Providers,the approach of Lehre von der gesetzmigen Bedingung is taken.As to the causality between helping behavior and result of Internet Service Providers,the helping behavior of Internet Service Providers is primarily physical help.The objective imputation theory should be used to limit the scope of penalty for neutral help.In determining whether Internet Service Providers make a threat which is not allowed by the law,the sufficient conditions that can be substituted should not be used widely.The difficulties of the intention of Internet Service Providers lie in Knowledge and Laissez-faire.Knowledge is different from Should Have Known.The conspiracy and knowledge may cause the difference of complicity and practice for the liability of Internet Service Providers,but won’t lead to the fundamental difference in criminal liability.Internet Service Providers’ knowledge can both be general and specific,the difference between general and specific knowledge is the intention of inducement of infringement.Internet Service Providers’ knowledge should be of high probability,not a general possibility.Internet Service Providers’ knowledge focus on the criminal acts,not on administrative malfeasance.The factual basis of Internet Service Providers’ knowledge contains sufficient conditions and exclusions.The defendant is allowed to retort after positive presumption.When the Supreme People’s Court and the Supreme People’s Procuratorate published The Interpretation for Obscene Electronic Information(second)in 2010,Laissez-faire gradually got divorced from the will of indirect intent of Mens Rea in criminal law.Facing the misnomer in the judicial interpretation,the interpreters should make interpretatio critica,and distinguish laissez-faire here from the laissez-faire of indirect intent,the former one is an action.The basis of the subjective accountability of Internet Service Providers is to actively promote or ignore the existing illegal criminal activities.Internet Service Providers are unlikely to have the foresight to anticipate the illegal and criminal activities that have not occurred.Therefore,there is no negligent liability in the criminal liability of Internet Service Providers.The methods of implementation of the criminal liability of Internet Service Providers can be classified to three categories:penalty,non-penalty punitive measures and security measures.The penalties available for Internet Service Providers are putting under surveillance,criminal detention,fixed-term imprisonment,life imprisonment and fines.On the whole,the penalty is light,the fine penalty occupies an important position,and the heavier punishment have the privilege when different punishment coincides.The non-penalty punitive measures available for Internet Service Providers are declaration of guilt,admonish,order to make a repentance,order to make an apology,order to compensate for losses,administrative punishment.The characteristics of Internet Service Providers and the impact of Internet should be taken full consideration in executing those non-penalty punitive measures,for example,the court can declare guilt of Internet Service Providers via webcast trial,or ask Internet Service Providers to publish the verdict or apology letter on their websites.The security measures available for Internet Service Providers are occupational prohibition,confiscate illegal income,and confiscate their property for use in crime.When the Internet Service Providers commit unit crime,the job ban can only be used for the natural persons in the unit,but cannot be used for the unit itself.When the Internet Service Providers are not implementing harm behavior specifically,the amount of the illegal income can be calculated according to the proportion of the illegal content in the total content.The software inserted by Internet Service Providers to implement crime is the possessions used for a crime.However,confiscating software cannot prevent it being used to commit crimes.Then,direct confiscation of illegal income works better.