Research On The Removal Measures Of Basic Network Service Providers

The development of network technology makes the network infringement more hidden,global and convenient.At the same time,it also makes it difficult for the notifier to issue infringement notices and take other rights protection measures to network entities that directly disseminate infringing information to users,and the notified subject gradually expands to basic network service providers.Based on the reasons of technical and legal value,such subjects do not have the ability to manage the information in the notice and cannot achieve location deletion.Therefore,there are obstacles to the lack of legal support such as ‘lack of cause’ ‘inconsistent with economic-cost analysis’ ‘imbalance of interests’ ‘violation of the principle of voluntariness’ and so on.Therefore,in order to avoid requiring basic network service providers to fulfill the obligation of taking deletion measures,judicial practice often limits its extension,which results in the conflict between the practical needs and legal value of deletion measures taken by basic network service providers.In this regard,first of all,it should be clear that the network service provider from the perspective of private law should only refer to the network subject providing technical services.At the same time,the extension and type attribution of the network service provider should be defined according to objective facts,and should not be limited in legal value.Secondly,it analyzes domestic and foreign judicial cases and Chinese administrative measures and judicial practice,and clarifies that China has the space to require basic network service providers to take deletion measures.Thirdly,it is clear that under the ‘notification-necessary measures’ rule,the notification behavior of the right holder is a procedural right,and the network service provider has only the corresponding obligation to receive the notification.The element of determining the illegality of the behavior of network service providers is whether it has ‘taken necessary deletion measures’.Judicial practice should consider ‘necessity’ based on the principle of proportionality.Again,in order to balance the interests of network service providers,rights holders and the public,it is necessary to carefully apply the ‘know’ rule to the basic network service providers,and to improve the standard of qualified notification by requiring the notifier to provide guarantees,timely filing a lawsuit or applying for behavior preservation,and proving that the main role of the relevant network subject is to promote the dissemination of infringement information.Finally,in order to coordinate with the principle of voluntariness,in the case of infringement of multi-subject rights,notices are issued by the relevant rights’ collective management organizations.