Study On Tort Liability Of Search Engine Service Providers

As information locator service,the search engine serviceprovided by search engine service providerswhich has the characteristics of convenience and commercialization is becoming increasingly prominent inthe Internet plus era.However,the infringement caused by it also leads to a fierce controversy.The reason is that search engine service providers as the special merchant in network space have not only technical advantages,but also the nature of seeking profit.But the traditional tort laws focus on remedy and the main purpose of them is not to punish,which makes search engine service providers ignore the lesser cost of infringement,pursue the maximization of interests and infringe upon the legal rights of the rights holders.From the perspective of the commercial subject of search engine service providers,the writer uses the method of comparative analysis and the method of Law and Economic to take into account the technical principles of search engines and the interests behind them.And then the writer studies the tort liability of search engines to achieve the purpose of not only protecting the legal rights and interests of the infringed but also restricting the business freedom of search engine service providers properly.Except the introduction and conclusion,this paper is divided into five parts to discussed the tort liability of the search engine service providers.In the first part,the writer considers the characteristics of subject and behavior of search engine service providers,and makes a research on the particularity of the infringement of search engine service providers from three aspects: the subject of tort,the behavior of tort and the rights infringed.In the second part,the writer analyzes the theoretical basis of the tort liability of search engine service providers.Lastly,the writer concludes that the theory of control is more convincing to the legitimacy of the tort liability of search engine service providers.In the third part,the writer studies the imputation principles of tort liability of search engine service providers.Though competitive ranking service has the characteristics of human intervention,direct profit and advertisement,the control of search engine service providers is no more than the control of the natural ranking service.Thus we should apply the principle of fault liability uniformly.The writer also puts forward the point that we should apply the objective fault imputation and distinguish the different objects of tort and assign different burden of proof to make up for the defects caused by the application of fault liability.In the fourth part,the writer discusses the components of the tort liability of search engine service providers,and sets up the duty of care of search engine service providers in the fault components.In the fifth part,the writer discusses the undertaking of the tort liability of search engine service providers,and also puts forward the application of punitive damages on the way of undertaking responsibility.