| During15-16November2008, CCTV "News30" continuedbroadcast on the Baidu search engine PPC Insider: Baidu searchengine accused of excessive human intervention search results,triggering spam, malicious shield, so that people of theeyebrows.In recent years, the case caused due to network searchengine PPC numerous legal article about web search engine istoo numerous to mention, but most of the articles are focusedon PPC triggered trademark infringement, PPC service providerprotection click fraud, less involved in acts that harm thelegitimate rights and interests of ordinary users of the searchengine and search engine users is a public group, is also avulnerable group in damage in dire need of the protection ofthe law, therefore, this paper systematically studied,relatively strict logical argument put forward views andcountermeasures, the hope can play a positive role in the judicial practice activities.If search engine users query information through thesearch engine to find a website and buy the products describedin the website, causing damage to their own interests,according to Article41of the Tort Law in the People’s Republicof China: defective, causes damage to others, the seller shallbear tort liability. Article42: the fault of the sellers makethe product is defective and causes damage to others, theseller shall assume the tort liability. The seller can notidentify the defective product producers can not identify thedefective product delivery, the seller shall assume the tortliability. Shows that above user, of course, can beinvestigated for legal responsibility of the producers orconsumers of the product, so as to safeguard their legitimaterights and interests. But from the reality of the situation,the damage of the interests of consumers, often difficult tofind producers and sellers of the product, this is a bigobstacle for consumers to maintain and achieve their legitimate rights and interests.As a breakthrough point, this article puts forward theviews and opinions from several aspects: the nature of thesearch engine bidding rank, whether it should be liable to bearany responsibility, what responsibility to bear, how to assumethe responsibilities and as well as the related laws andregulations. And discussed through the following four parts:The first part identifies the nature of bidding rank, thatis, the quasi-public products; the argument of "bidding rankis advertising" is dismissed. Consequently, bidding rank isnot applicable to the "advertisement law" in our country.Additionally, this part discussed the legitimacy forinvestigating and affixing the tort liability for biddingrank.The second part determines the imputation principles ofbidding rank service providers; from several situations,discussed about whether the bidding rank service providers hascontributory tort liability together with the bidding rank involved website; puts forward the burden of proof for biddingrank liability.The third part discusses about whether there is jointlyand severally liability, the author thinks that: in the biddingrank cases, the situation of the joint intent or jointnegligence shall bear joint and several liability or the realjoint and several liability; the reason is that the searchengine service provider or the tort website has subjectivetendency on contact, this conform to the legitimation basisof joint and several liability; And under the situation ofintentional competition, negligent competition and one partis negligent and the other part is intensional, shall bear thenot really joint and several liability, then it is easy to solvethe light that in reality the infringer can not bedistinguished, so as to safeguard the legitimate rights andinterests of the patentee.The fourth part is about China’s legal construction of thenetwork search engine bidding rank; the author has put forward three preliminary legal suggestions basing on the analysis ofthe shortage of our country’s relative law:1. While formulating website contract the bidding rankservice provider should be required to provide thecorresponding qualification certification documents,detailed address, etc., for a formal review of the relatedqualification.2. In the case of bidding rank Infringement, the commoninfringement is not necessarily of common intensionalcontact, it shall be based on the fault presumption principleimputation principle, supplemented by the burden of proofupside down, and matching.3. On bidding rank tort responsibility, the commoninfringement intention is for the sake of their jointly andseverally liability, and while don’t share common tort meansthat bears the not really joint and several liability. 4. To sum up the whole text with the most simple statement,it reaffirms that if the search engine bidding rank and websiteowner constitute a common tort, the case shall be based on thefault imputation principle of imputation principle,respectively bear the responsibility in two differentconditions on the real and not real joint liability and jointliability, and should also bear the social responsibility. Atthe same time puts forward the three legal advice. |
