| Internet services provide a convenient and prompt way for the public to promote information dissemination,interpersonal communication,and knowledge sharing.Via Internet services,people are able to communicate with Internet users in the globe and access Internet resources around the world.At the same time,nonetheless,Internet services have become a flooding ground for infringements due to their anonymity,openness,and high-speed dissemination of information.Facing the frequent infringements upon right holders,only by letting operators and managers of Internet services bear the corresponding obligations and responsibilities can we prevent or restrain Internet infringements.Notwithstanding,in view of the nature of Internet services,it is arduous for Internet service providers to control and interfere with the behavior of all Internet users,and it is similar to seeking a needle in a haystack to ascertain every infringement committed by Internet users.Thus,a reasonable tort liability system of Internet service providers that takes into account the interests of all parties has yet to be established.Based on this,this thesis carries out a study into the tort liability system of Internet service providers.This thesis starts from the theoretical basis of the tort liability of Internet service providers,and makes a theoretical introduction to the tort liability of Internet service providers.This thesis adopts a narrow definition of Internet service providers,mainly studies the tort liability in the sphere of technical services.There are three categories of the tort liability of Internet service providers: contravention of “Notification Rules”,contravention of “Knowledge Rules”,and contravention of“Safeguard Obligation”.These tort liabilities have their peculiarities in the subject,constituent elements and exemptions,forms of responsibility,and ways of assuming liability.Hence,based on these peculiarities and China’s actual national conditions,affirming the tort liability of Internet service providers shall adhere to three basic principles–the principle of service neutrality,the principle of balance of interests,and the principle of furthering the Internet service industry.This thesis then analyzes the instant situation of China’s tort liability system of Internet service providers.Under the guidance of the aforesaid Three Basic Principles,it points out several problems existing in China’s present tort liability system of Internet service providers.For instance,the absence of a relatively uniform tort liability system in contravention of the Notification Rules,the Notification Rules and its derived CounterNotification Mechanism being not soundly established,the absence of active review obligation under special circumstances,the criteria for the subjective status of Internet service providers under the Knowledge Rules in need of clarification,the deviation in the judicial positioning of direct obtainment of economic benefits,the judicial cognizance of system’s automatic recommendation and ranking in need of improvement,the identity of Internet service providers of being Safeguard Obligor being unknown,and no effective judgment applying the Safeguard Obligation to Internet service providers.In the course of study,this thesis introduces the system of tort liability of Internet service providers in three countries/regions,including the United States,Germany,and the European Union.Amongst them,the United States and the European Union parts focus on the introduction of a safe harbor comprising Notification Rules and Knowledge Rules,while the German part focuses on the introduction of the theory and practice of Safeguard Obligation.Meanwhile,this thesis conducts a critical evaluation of the legislation and judicial practice of these three countries/regions,and lists places that are worthy of reference and places that are not.Finally,guided by the Three Basic Principles and combined with the results of the abovementioned comparative study,this thesis puts forward a few suggestions to better China’s tort liability system of Internet service providers.Insofar as the tort liability system in contravention of the Notification Rules is concerned,China should establish a relatively coordinated and unified system,but it may adopt more flexible mechanisms for trademark rights and patent infringements,as well as defamation information.China should add a good faith requirement to the Notification Rules and Counter-Notification Rules.Aiming at the defects of the Declaration-Complaint(Litigation)Mechanism set forth in the Civil Code(Drafted Version)and the rigidity of the Counter-notification-Recovery Mechanism,a more flexible right holders–uploaders dispute resolution mechanism should be set up.For repeated infringers and repeated infringing information,Internet service providers should take relevant countermeasures on the premise of technical feasibility and reasonable cost.This thesis concurs with knowledge as the criterion for judging the subjective status in Knowledge Rules.A vicarious liability system in US tort law should be introduced against the deviation of direct benefits and control in judicial practice.This thesis proposes to distinguish the nature of automatically generated rankings and recommendations,especially for algorithm-based recommendations which should not be a factor in determining the knowledge of Internet service providers.Insofar as the liability of Internet service providers for the contravention of Safeguard Obligation is concerned,this thesis proposes that the status of Internet service providers being a Safeguard Obligor should be established.Different from the extensive application of Safeguard Obligation in other literatures,this thesis confines the scope and purpose of the Safeguard Obligation of Internet service providers,that is,to prevent online activities from causing offline physical and property damage.In order to attain this goal,China should accordingly expand the scope of the objects protected by a Safeguard Obligor,no longer limiting to the persons in the perimeter of public places or persons participating in mass activities.As a Safeguard Obligor,an Internet service provider should prevent from affecting offline life the information in the online public space or the online activities under its sponsorship or organization,causing damage to offline physical rights such as life,body,and property.This thesis also puts forward suggestions to better the right of recovery of Safeguard Obligors stipulated in the Civil Code. |
