| The responsibilities of operators of social e-commerce platforms are positively correlated with the dependence of their revenue status on e-commerce transactions within the platforms.Therefore,the duty of care is also different if the emphases of platforms are different.Depending on the business focus,thus the social e-commerce platforms can be divided into type "social+",type "e-commerce+" and type "social&e-commerce+",the standards of responsibility for different types of platforms should not be no difference.Therefore,when determining the tort liability of operators of social e-commerce platforms,their business focus should be fully considered,and different constitutive elements of tort liability should be given for platforms with different business focus.At present,the theoretical and practical circles in China adopt the "joint tort theory"for the liability determination of platform operators.However,compared with the"indirect tort theory",this theory lacks certain legitimacy,appropriateness and operability.Therefore,the indirect tort theory is more conducive to solving the liability determination problem of platform operators.As typical cases of intellectual property disputes involving social e-commerce platforms,Case "Liby vs.Buy Together" and Case "Kwai"reflect the tendency of indirect tort liability identification for operators of social e-commerce platforms in judicial practice in China.A comprehensive analysis of the existing relevant laws and regulations as well as judicial cases shows that the indirect tort liability identification system of social e-commerce platform operators in China has shortcomings such as unclear legal positioning of social e-commerce platform operators,too narrow scope of duty of care and misuse of the "notice--delete" rule.As for the determination of indirect liability of operators of social e-commerce platforms,the United States stipulates the liability of social platforms and e-commerce platforms in different laws,and adopts different judgment standards for the determination of their liability.In the social platform,the platform does not bear any joint liability for the speech or activity in the platform,and at the same time also enjoys a wide range of"control" authority;in the e-commerce platform,the platform operator’s indirect tort liability is confirmed through the "Safe Harbor Rule".The EU implicitly introduces a"filtering obligation" in Article 17 of its Directive on Copyright in the Digital Single Market.According to the regulation,the platform operator should not only fulfill their obligation to "notice--delete" rule and also to prove that he or she had tried to seek authorization but were unsuccessful.In addition,the platform operator should fulfill a high-standard duty of care in the industry to prevent unauthorized works from being acquired and disseminated by others.Only when these three conditions are simultaneously met,can the platform operator be exempted from liability and not be identified as indirect infringement.For the tort liability determination of operators of social e-commerce platforms,relevant systems can be improved through theoretical,legislative and judicial approaches.On the theoretical path,indirect tort theory should be adopted to replace joint tort theory.On the legislative path firstly,the legal positioning of the operators of social e-commerce platforms should be clarified,secondly,the legal relationship between platforms and direct tortfeasor should be clarified,finally,it is suggested to prudently introduce the"filtering obligation" and a supporting system should be established according to China’s national conditions.On the judicial path,first of all,the judgment criteria for the "fault"of the platform operator should be refined,and then the "Safe Harbor Rule" should be used reasonably.Only when the analysis determines that the platform has no fault and has fulfilled the duty of care while maintaining a neutral position,can the "Safe Harbor Rule" be applied to determine whether it constitutes an indirect infringement. |
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