Research Of Link Service Provider's Duty Of Care

According to China's "Tort Liability Act" Article 36 of the provisions of the network service providers to help infringing or to lure the conditions of infringement is a fault.The important basis for determining the fault is whether the network service provider has made a reasonable duty of care.Research has been focused on the qualitative nature of the link service,or the specific link or link content provider responsibility for the research content,less concerned about the specific content of the link service provider attention obligations and link service provider attention obligations.The civil law on the duty of attention in the service providers to pay attention to the obligations of the identification is difficult to play a reference role.This paper takes 180 cases of court in China from 2004 to 2016 as the sample,this paper selects the perspective of the obligation of linking service provider,and finds out the specificity of the "service duty" in the judicial practice There are three main categories of content:the understanding of the service qualification of the chained website,the cognitive obligation of whether the content of the chain is legally authorized,and whether the content being linked is a legally authorized review obligation;the obligation to understand the business qualification of the chained website Whether the content of the link is a legally authorized review obligation has exceeded the scope of the "reasonable duty of care" of the link service provider,which is actually a review obligation.In addition,this article empirically examines which link patterns,and the link content has an impact on the "fault" of the identified link service provider.The results of the test found that the active link,the deep link,the link content for the film and television works,the link content for the text works for the link service provider attention obligations have a significant impact,and the above four factors on the link service provider attention obligations Followed by decreasing trend.When the court determines whether the link service provider assumes the duty of care,it may first consider the factors that have a greater impact on the duty of care and consider the impact of other factors on the degree of duty of care,based on the case situation.When a link service provider sets up a link,if the link is an active link or a deep link,the chain content is a film work,a television work or a textual work,and the chained content should be given a heavier duty to avoid Constitute help to infringe.