A Study On The Second Liability Of Internet Presence Provider

By the decline of the Internet Presence Provider (IPP) such as Yaboo and Eachnet and the emergence of the360buy, vancl and VIPshop etc. in the new age, the online shopping and internet trading are getting familiar to everyone in daily life. The Internet is not only a tool for transferring information but also a newly developed industry. The legal regulation of tort in the Internet environment will directly influence the development of this industry. Therefore, how to prevent the negative effect of the law to the Internet industry is becoming a focused problem in the application of law. Recently, some researchers only studied the legal position of the IPP and defined them as the counter provider or the intermediary so as to apply the corresponding rules; some studies focused on the fundamental duty of the IPP, while others only researched the liability of copyright infringement or the trademark infringement of the IPP. However, the systematic study of the second liability of the special IPP was very limited. Our study was aimed to solve this problem by definition of the legal position of the IPP, the classifying analysis of duty. In this way we discussed the rules of the second liability of the IPP.The thesis was made of two parts:the main text and concluding remarks.In the first chapter, we analyzed a typical case of internet infringement in which the infringed Eland Company accused the IPP TaoBao Company and the infringing people for taking common liability for tort. Then the problem discussed in our thesis was introduced.In the second chapter, we listed several major theoretical views on the legal position of the IPP:the information channel, the intermediary, the judge, the interceder and the counter renter. We treated the IPP as a new independent civil subject after analyzing these viewpoints.In the third chapter, we described the duty of the IPP during the internet presence service. By the summary of the origin of the civil, we discussed the origin of duty of the IPP, that is, benefit and contract. Benefit is the source of legal obligation and contract is the source of contractual obligation. Then we classified the legal and contractual duty of the IPP for the progressive clearance of the range of the liability of breach of contract and tort, which is also fundamental for discussion of which kind of tort liability the IPP should take.In the fourth chapter, we first classified several cases in which the IPP should take liability for tort. One case is that when the IPP released information or pictures that infringed other people’s rights, it should take the direct liability for tort. Another case is that the IPP provided the convenient situation or help for other people to infringe, which is called the second liability. We focused our analysis on the latter case for its major existence in real life. By comparison we found the reason for why each country took the faulty liability principle for the IPP. Then we analyzed the constitutive requirements of the second liability of the IPP combining the36th rule of law of tort liability. At last we made some advices on how to improve the principles of the second liability for the IPP.In the part of concluding remarks, we returned back to the case in the start of the thesis and gave a summary discussion. Above all, we aimed to give a deeper analysis of the principle of the second liability of the IPP, which can make some effort to complete the system of rules for the second liability of the IPP.