Research On Digital Infringement Liability Of Internet Service Providers

Internet Service Providers are natural persons,legal persons and other organizations that use their own hardware and software equipment to provide internet users with services such as connection,transmission,sending,caching,storage,retrieval of online digital communications and their derivative services(shopping,payment,etc.)for profit or non-profit purposes,and in categories including internet access service providers,internet caching service providers,internet storage service providers and search Link service providers,in practice,will also be reflected in the aggregation of more than two categories or new Internet Service Providers,such as operators providing WI-FI services,cloud server rental service providers,small program service providers.Internet Service Providers are special category of subjects in China’s law,enjoying the right to report,prosecute and sue,as well as the right to be treated equally with rights holders and the public;having the obligation to“notify-necessary measures”,“to notify-necessary measures” and “to notify-necessary measures”.The obligation to “notify-necessary measures”,“to declare-to inform the means of remedy”,“reasonable period of time did not use the means of remedy-termination measures”.Internet Service Providers using the internet to infringe other people’s civil rights and interests should be liable for infringement if the Internet Service Providers know that the internet user using its internet services to infringe on the civil rights of others did not take the necessary measures and the internet user to bear joint and several liability.China’s Internet Service Providers’ s rights and responsibilities are based on the “Internet Service Provider centrism” governance model,the internal logic of the “Hand formula” by the lowest cost to avoid accidents to bear the costs of accidents.The internal logic is derived from the “Hand formula”,which is consistent with the concept of distributive justice and corrective justice.With the digitization of social economy,social life and social management,China has entered the digital era.Numbers and data embody the relationship between abstract and figurative,macro and micro,whole and part,data is the carrier of information,information is the content of data,data and information embody the relationship between form and content,representing different aspects of the same thing,numbers and data,information have the relationship of inclusion,numbers are the superordinate concept of data information.“Digital is power” and “code is law” are the rules of governance in cyberspace.Digital infringement by ISPs is an infringement behavior that is both mapped to and independent of traditional infringement,and the types of digital rights infringed by traditional and emerging types of ISPs in different digital infringement scenarios are different.“Digital infringement” refers to the infringement of digital rights in the cyberspace opened and operated by the Internet Service Providers,and the users who travel in the cyberspace as digital persons are able to infringe the digital rights mapped to the real world through the platform provided by the Internet Service Providers.The rules for determining the digital tort liability of Internet Service Providers are subject to the Civil Code,and the essence is that internet users and Internet Service Providers use the internet to infringe upon the civil rights and interests of other people,but they belong to the frontier form of the digital era,reflecting the triple characteristics of the meta-universe-the platform of virtual space,the plurality of users,the spatio-temporal synchronicity.The “digital nature” of digital infringement by Internet Service Providers is reflected by the fact that Internet Service Providers provide internet services based on digital technology;internet users can have digital bilocation in cyberspace and have digital personhood;traditional civil rights become rights that can be infringed in cyberspace through the mapping of digital cyberspace,thus becoming digital rights.Thus,they become digital rights.Compared with ordinary internet infringement,digital infringement by Internet Service Providers has the typical features of platform-based Internet Service Providers,diversified internet users,and compounded civil rights and interests.As Internet Service Providers play an important role in the era of digital economy,the formulation of digital economy law can be considered to strengthen the function and status of Internet Service Providers.Digital infringement with the participation of Internet Service Providers has a greater harmful effect.The digital tort liability of Internet Service Providers has the characteristics of indirectness,commonality and fault.The system of imputation principles of digital infringement liability of Internet Service Providers at least contains the principle of fault liability and the principle of presumption of fault liability.The principle of fault liability applies to the situation where the Internet Service Provider fails to fulfill its duty of care.The scope and extent of the Internet Service Provider’s duty of care depends on the type of rights being protected,the nature of the internet service,the risk control rights and capabilities that the Internet Service Provider should have,its objective degree of involvement in the infringement,its profit from the infringement of the internet user,etc.The application of these constitutive factors should focus on the differences in stages divided by the time point when the Internet Service Provider is notified,and the duty of care arising from the unnotified stage based on the Internet Service Provider’s expectation and ability to control the risk of infringement and the notified stage based on the Internet Service Provider’s ability to review the submitted materials should be judged by the product model of service type “type of conduct” object of right.The principle of presumption of fault is applicable when the law and judicial interpretation of digital infringement of the Internet Service Provider provides that “hould have known”,“should have known”,“had reasonable grounds to know”.Other countries have used no-fault liability as the imputation principle for digital tort liability of Internet Service Providers,but in terms of the current situation in China,the digital tort liability of Internet Service Providers does not meet the conditions for no-fault liability.The four elements of illegal acts,damage facts,causal relationship and fault are applied to the elements of digital tort liability of Internet Service Providers.The acts performed by the Internet Service Provider can be summarized as changing(the work),locking(the service object or the original provider),and failing to remove(the allegedly infringing work).The act of changing corresponds to the act of acting,the act of locking has both the act of omission and the act of acting,and the act of failing to remove corresponds to the act of omission.Cyberspace can be analogous to public places,can be applied to the content of the security obligations of the form of illegal behavior under the dimension of the nature of illegal behavior.Internet Service Providers “open,participate in social interaction” “to the rights and interests of others,” and therefore have a security obligation to the cyberspace.Safety and security obligations can be divided into human safety and security obligations of things,the former mainly refers to the operators and organizers of business premises,public places to the field of personal safety,the latter mainly refers to the management of the building to prevent injuries to people from throwing and falling objects from height.For Internet Service Providers,the internet itself is not like electricity,gas and other daily consumables with dangerous characteristics,without human intervention,the internet itself will not cause personal injury and property damage,so the safety and security obligations of Internet Service Providers are reflected in the safety and security obligations of people,rather than the safety and security obligations of things.The former refers to the operator,manager or mass event organizer of the business premises,public places for their own operation,management of the field of security obligations,the latter refers to the third party behavior involved in the damage caused when the operator of the business premises and other security obligations.The latter refers to the situation where the operator of the business premises is liable for the damage caused by the behavior of a third party.These two types of liability in the traditional physical space and modern cyberspace have different embodiment.In the traditional physical space,the things within the management scope of the place operator and manager may become harmful factors,so the place operator and manager have the obligation to guarantee the security of the place itself,while in the modern cyberspace,the internet itself will not become a harmful factor,and the tort committed directly by the Internet Service Providers is based on Article 1194 of the Civil Code,which states that the Internet Service Providers who uses the internet to infringe the civil rights of others shall be liable for the tort.The tort of the Internet Service Provider to use the internet to infringe on other people’s rights and interests shall be subject to the provisions of the tort liability can be regulated,and do not need to bypass the safety and security obligations to be interpreted.Based on this article and the reality of the common,difficult Internet Service Providers digital tort is the Internet Service Providers and internet users of the composite behavior,is the plural form of infringement,that is,the third person intervention type of behavior,and therefore closely related to the Internet Service Providers security obligations of the law is the Civil Code,Article 1198,paragraph 2of the third person intervention type of security obligations of the person responsible,and The connection with the provision of the security guarantor’s own liability in paragraph 1 of the same article is very weak.This thesis focuses on the third-party intervention type of security obligations,i.e.,the obligation to prevent others from infringing,which is reflected in the indirect infringement,and the security obligations of Internet Service Providers are specifically reflected in taking reasonable measures to stop repeated infringement.The damage fact of the digital infringement elements of Internet Service Providers has the characteristics of inclusiveness,compensability and data.For the case of competing digital infringement violations and user violations by Internet Service Providers,most of the traditional causation theory has limited explanatory power,and the risk-centered objective attribution theory stands out.The risk that the Internet Service Provider commits the illegal act creates the impermissible risk,the risk that the Internet Service Provider commits the illegal act realizes the impermissible risk,and the risk that the Internet Service Provider commits the illegal act realizes is within the scope of the effectiveness of the constituent elements.The provisions of the Civil Code related to the fault of the Internet Service Provider in tort liability can be summarized as “notice-forward notice-necessary measures” rule and“know / should know-necessary measures” rule,the Internet Service Provider digital tort fault includes both intentional,and negligence.The fault of digital infringement of Internet Service Providers includes both intentional and negligent,and the fault of receiving notice and knowing is the form of intentional fault,while the fault of knowing is the form of negligent fault,and the scope of the duty of reasonable care of Internet Service Providers is to take reasonable and effective technical measures to filter and monitor repeated infringing information.The presumption that the Internet Service Provider “should have known”includes editorial choice,“red flag knowledge”,and evasive notice.The form of digital infringement liability of Internet Service Providers is substitution liability,unilateral liability and joint liability.The legal provisions,judicial interpretations,and mainstream doctrine have confirmed that the Internet Service Providers and internet users bear joint and several liability and that they constitute joint infringement,and it is debatable to argue that Internet Service Providers should bear separate liability for not taking the necessary measures.The legal basis of joint and several liability of Internet Service Providers lies in the implementation of joint infringement with internet users,and the judgment criterion is to say that the Internet Service Providers are jointly and severally liable.As a component of the infringement of the digital infringement elements of the Internet Service Provider and the basis for the argument of causation,the second paragraph of Article 198 of the Civil Code should be directed to the traditional security obligations of supplementary liability,but this is not enough to impact the jurisprudence of the Internet Service Provider to assume joint and several liability,even in the case of breach of security obligations by the Internet Service Provider Even in the case of breach of safety and security obligations by Internet Service Providers,the provisions of Article 198(2)of the Civil Code only supply the theoretical basis for it,and are not directly invoked by the law,thus its provisions of supplementary liability do not apply,and Article 38 of the E-Commerce Law,Article 44 of the Consumer Protection Law,Articles 62 and 131 of the Food Safety Law,Articles 45 and 56 of the Advertising Law and other Internet Service Providers’ safety The provisions of the obligation to protect and joint and several liability are the special provisions applicable to the Internet Service Providers,and in the case of the same legal level,the special law is superior to the general law application.Supplementary liability violates the principle of full compensation,has a certain impact on the fault liability system,and is not in line with the principles of litigation economy and litigation efficiency,causing confusion in the later stages of recovery,and theoretically will fall into the dilemma of whether and how to allocate the right of recovery,and therefore is not suitable as a form of liability for digital infringement of Internet Service Providers.In the cyberspace,there is a close connection between the operator in the platform and the internet platform as the direct implementation of the infringement,and the causal power of the Internet Service Provider for the fact of damage may not be less than that of the internet user.In the case of violation of the security obligations of the Internet Service Provider,it is not in line with the actual situation to apply supplementary liability to the Internet Service Provider as the second-ranking responsible person.The joint and several liability of the Internet Service Provider evolves a new form of “partial joint and several liability”,i.e.the Internet Service Provider only bears joint and several liability with the internet user for the expanded part of the loss after the notice,which means that the internet user bears non-joint and several liability before the notice,and the Internet Service Provider bears joint and several liability with the internet user after the notice.The realization of the right of recovery of the Internet Service Provider has to solve two problems: the specific share of responsibility between the Internet Service Provider and the internet user and the determination of the user who directly commits the infringement by the Internet Service Provider.From the current trial practice and the technical level of the Internet Service Provider,these problems are not enough to prevent the Internet Service Provider from realizing the right of recovery against the internet user.