The Tort Liability Caused By "Malware"

The internet is a product of information technology revolution, which deeply influencesall aspects of the social life such as politics, economy and laws, etc. With the development ofthe internet, people grow to reply on it more and more evidently. While the internet istransferring huge amount of information, it has become a convenient way for infringement actof pursuing economic interest, of which, the rogue software has been a tough obstacle duringthe development of the internet today. The legal analysis, confirmation of responsibility andsolving measures towards the rogue software becomes a hot spot of present study of law.The first part of this dissertation introduces the concept of the rogue software. By studyingall definitions of the rogue software made by various authorities, accurate definition is carriedout. The rogue software, i.e., the malware, is software between computer virus and formalsoftware. Without a clear notice or user’s approval, it runs in the background of the usercomputers or other terminals, and which is concealing and difficult to uninstall. It evendeprives the autonomy, option and control power of the users towards the computers andoperation of the software. The second part is the horizontal analysis of the domestic andoverseas definitions of the rogue software. The deficiency of management of the roguesoftware in our country is concluded by comparing to the management of the rogue softwarein European countries and America. At present, European countries and America all have lawsagainst the rogue software, but our country has not legislated the rogue software. It onlyapplies in the regulations, which is not able to protect the legitimate interest of the computerusers profoundly. The third part is about the confirmation of responsibility and nature of therogue software from the point view of infringement act and its formation. The nature of therogue software is the conflict of interest due to the expansion of citizens’ informationcapability in the network environment. In the meantime, the infringement act of roguesoftware is divided into3categories according to the contents as infringement of property,infringement of the right of personality and infringement of right of freedom. Theresponsibility of the3categories of infringement act is analyzed from the point view offormation of infringement act. The forth part puts forward that the laws concerning theemerging Internet acts is backward and inadequate. Therefore, providing a favorable laworder and establishing profound law references for the civil right of the cyber citizen have become a problem in urgent need of solution at present. Aiming at the infringement act ofrogue software, the present civil laws should be improved. It should be defined in civil lawsand right of freedom of information should be established in civil laws as well as the liabilityprinciple. Financial help to the infringement act of rogue software should be realized. Only ifthe malicious infringement acts in the network environment are under control, can the orderlydevelopment of the internet be realized, can right of the cyber citizen be ensured and can theharmonious law environment be established.