Research On The Duty Of Care Of Internet Service Providers

This article from the perspective of the network service provider a duty of care,focus on the field of intellectual property infringement,according to the different stages of Internet infringement,the network service provider of each particular stage to advance technology phased duty of care stage filtering obligations,things necessary measures and later stage of the monitoring obligations for analysis.First of all,this paper clarified the definition of duty of care and its practical basis and legal basis,and pointed out that the establishment of duty of care should follow the principle of balance of interests.As for the duty of care in advance,this paper argues that in the advance stage,technical filtering obligation has relatively mature technical filtering measures and can be accepted by the current legal framework,but it cannot be denied that it may restrict citizens’ freedom of speech and infringe on users’ personal data protection.For duty of care in the event,this paper further clarifies the definition of duty of care in the event.Combined with the legislative dynamic changes of necessary measures and the change of attitude in judicial practice,classic cases are selected for in-depth discussion.This paper holds that,at the stage of the event,necessary measure obligations include positioning clearance measures and other necessary measures.The determination criteria shall be whether necessary measures can effectively prevent the continuation of the infringement and the further expansion of the damage involvedThis paper redefines the origin,rationality and connotation of the post-monitoring obligation.It believes that the monitoring obligation is a high duty of care generated to regulate repeated infringements,and has its rationality and necessity.However,it is difficult to solve the practical problems of the deviation of the cognizant subject of the infringement behavior corresponding to different measures and the difficulty of directly incorporating the current "notice deletion" rule system into the monitoring obligation.Based on the analysis conclusions,this paper puts forward suggestions for improvement of is Ps’ duty of care at each stage,that is,gradually expanding the scope of technical filtering to achieve comprehensive coverage of prior duty of care;The consideration factors of necessary measures should be clarified and the duty of care should be further improved.With reference to the "notification deletion" rule system,the obligation of monitoring is applicable to transformation.