Study On The Liability Of Rights Holders Sending Erroneous Notice

Sending erroneous notifications by rights holders is a common abuse of the "notice-and-takedown" rule.Those who send erroneous notifications should be held responsible for the damages caused by their mistakes.Article 1195,paragraph 3 of the Civil Code defines erroneous notifications as a typical tortious act,but there are still unclear issues regarding the claim basis for liability,attribution principles of fault,the elements of the tortious act,and the amount of compensation for damages.There is no consensus on the claim basis for regulating erroneous notifications in practice.Commercial defamation is not a suitable basis for liability for erroneous notifications because the dissemination of false information requires an element of publicity,while notifications are not public.The general provisions of the Anti-Unfair Competition Law require the element of "violating commercial ethics," and only "maliciously erroneous notifications" meets that requirement.The liability for tortious acts is generally applicable to all erroneous notification behavior,while "negligent erroneous notifications" can only be regulated by tortious liability.Article 42,paragraph 3 of the E-commerce Law cannot be applied as a separate basis for liability,and its value lies only in stipulating punitive damages for malicious notifications.Regarding the attribution principles for erroneous notifications,there is a dispute between the principles of fault-free liability and fault presumption liability.The principles of general fault liability should not be supported because it significantly disadvantages the notified party in terms of burden of proof.When analyzing the attribution principles,attention should be paid to distinguishing different types of liabilities,and the discussion of attribution principles is only meaningful in the field of compensation for damages.The analysis of attribution principles should also pay attention to the differences in the attributes of different types of intellectual property and implement the differences in different situations through flexible concepts.According to the requirements of the China-U.S.Economic and Trade Agreement and judicial interpretations,Chinese law needs to exempt good-faith erroneous notification submitters from liability,which can be achieved through statutory exemption under the fault-free liability principle and by grasping the duty of care under the fault presumption liability principle.Therefore,the dispute between fault-free liability and fault presumption liability is only a theoretical framework dispute,not a substantive legal application effect dispute.Under the same substantive legal effect,the fault presumption liability has advantages in terms of interpretation cost and behavior incentive effect,and is a more appropriate theoretical framework to achieve this goal.In terms of determining the liability for damages,there is an intrinsic correlation between the tortious act of erroneous notifications and the damage caused.The tortious act of erroneous notifications refers to the notification that causes the ISP to take incorrect measures against the notified party,which significantly differs from "unqualified notifications." The damage includes both the purely economic losses of the notified party and the personal interests of freedom of expression and speech.The element of causality will not be blocked by the notified party’s counter-notification or appeal."Malicious erroneous notifications" should bear punitive damages liability,which mainly manifests in four typical situations which can be referred to by judicial practice.In determining the amount of compensation for damages,it is particularly necessary to consider the notified party’s past profits and losses and the magnitude of the erroneous notifications.