The Network Service Provider’s Safety-Guard Duty

Today, the Internet has entered into the Web2.0era. Decentralization, opennessand resource sharing have become its significant characteristics. Internet users canshare all kinds of views no matter when and where. They can get the information theyneed as well as publish their own point of view. Extensive participation and highdegree of freedom has made Internet an important part of contemporary life. However,while the Internet has brought convenience to people’s lives, the risk of people’s legalrights and interests being infringed has also increased. Although tort cases in networkhappening frequently is obviously related to the characteristics of the Internet itself,the responsibility of the network service providers should not be ignored, because it isthe network service that creates the conditions to the infringement. Network serviceproviders may not have direct infringement, nevertheless, to some extent, they allowthe infringement occurs, which finally leads to tort cases flooding in cyberspace.Internet service providers play the role of social site managers or massiveactivity organizers to a certain extent, and in accordance with the traditional theory ofobligation of safety guarantee,"the one who starts or sustains certain danger shouldtake necessary and appropriate preventive measures according to the specificcircumstances to protect the third party from damage". Internet service providersshould bear the obligation of safety guarantee, take care of the interests of otherswithin reasonable limits. However, in our existing tort liability theory, the theory ofobligation of safety guarantee is not taken as the theoretical basis of tort liability ofInternet service provider, Instead, learning from American "safe haven" rule, theexisting theory inclines to protect the Internet service provider, assuming that Internetservice providers are in "technological neutrality" status, should not take too muchresponsibility of the contents that internet users provided, neither do they bear theobligation of actively searching for tort activities. However, because of the inherentdefects, the existing law does not provide the legal basis for Internet service providersto bear the indirect liability. And with the continuous development of the Internetindustry, the neutral status of network service provider has increasingly blurred, theprotective policy has been out of date.Therefore, it is necessary to bring the theoretical basis of the tort liability ofInternet service provider back to the theory of obligations of safety guarantee, to urgethe network service provider to do something in order to prevent network tort eventsat the source, so as to better protect the legitimate rights and interests of others, and torealize the justice of allocation of social resource.