Research On The Application Of Notification Deletion Rules To New Internet Service Providers

At present,the rule of "notice deletion" has been reflected not only in the field of information network communication right protection,but also in the field of civil right.In practice,due to the development of information network technology,many new network service providers represented by "cloud server" and "wechat applet"have emerged.Their emergence poses a challenge to the "notice deletion" rule,which makes the rule difficult to distinguish the legal nature,linger in the choice of legal interpretation path,doubt the determination of the principle and scope of necessary measures,and overhead anti notice in China’s judicial practice.Firstly,for the application of law,the "notice deletion" rule in the regulations on the protection of the right to information network communication is specifically applicable to the copyright infringement cases of network service providers.The application of such cases has legal priority and quickly and effectively balances the legal rights and interests of the three parties;From the attribute analysis,the new network service providers can not be classified as the four types of network service providers in the regulations because of the characteristics of "fact impossibility" and"law impossibility",but should be included in the scope of "network service providers" in article 1194 of the civil code.In order to better balance the legitimate interests between obligees and network users,new network service providers should apply the rule of "Notification plus necessary measures" under article 1 195 of the civil code to regulate new network service providers when they are unable to take the"positioning deletion" required by the regulations.The regulation method should first clarify the necessary measures,follow the principle of proportion,and meet the legitimacy of purpose on this basis Three sub principles:appropriateness and necessity.After the principle is determined,the scope of necessary measures should be considered from two aspects:legislators and network service providers.For legislators,on the premise of not specifically limiting the necessary measures,we should clarify the applicable subjects of deletion and chain breaking measures,and identify the types of necessary measures that can be taken by new network service providers,such as whether the measures for infringement rather than infringers can be included in the scope of necessary measures;For new network service providers,as a neutral platform,they have the status of "quasi judge" on the qualification of notification and the selection of necessary measures.They should formulate reasonable duty of care based on the principle of consistency of rights and responsibilities in solving such problems.Because they are non professionals,the law should not impose too high duty of care,and they should be given a certain degree of autonomy within a reasonable range,Select the implementation mode of necessary measures from their perspective.Moreover,after combing the whole closed-loop procedure of the "notice deletion" rule,it can be found that the "counter notice"procedure is overhead when the new network service provider applies the rule.Article 1196 of the civil code only stipulates that the content of the counter notice should include the preliminary evidence of non-existent infringement,but does not specify the consequences of not having the elements of counter notice,which is the main reason why the counter notice procedure plays little role,The legal consequences of not having the elements should be added in the subsequent improvement of the law,so as to make the law a tiger with "teeth".