Research On Theoretical Basis Of Internet Service Provider’s Totr Liability

The key issue of this dissertation is that why internet service providers (ISPs)should be liable in tort when internet users constitute infringements on internet.Starting with article36, this dissertation makes effort to solve the issue on thetheoretical foundation. This dissertation is divided into six chapters as well as theintroduction and conclusion. The logical relationship of each chapter is as follows.The function of chapter1is to prove that the common theory cannot explain thelegislation effectively. Based on this, the dissertation focus on the question that is itjust for ISPs to take tort liability when the infringement is acted by Internet users. Ifthe answer is positive, then what is the foundation?According to article36of Tort Law, there are two key points on the tort liabilityof ISPs. One is ISPs “knew” the infringement exist, and the other is ISPs did not takemeasures in time. Main approaches to decide whether ISPs “knew” or not are dividedinto two: one is the notice and takedown regime, and another is knowledge regime. Sothis dissertation discussed these two regimes in chapter2and3. Furthermore, chapter4proves the theoretical foundation of ISPs’ remove obligation. Based on thereconstruction of theory above, chapter5discusses the systematical affections in detail.The regulation of ISPs’ tort liability is a part of the more grand theory that how toregulate infringements on internet. So this dissertation discusses their relationship inthe last chapter.Main opinions of each chapter are as follows.In chapter1, joint tort is generally considered to be the reason of joint and severalliability for ISPs and Internet users. However, this viewpoint does not accordance withconstitutive requirements of joint tort, as well as it exists insufficient justificationbecause of imbalance of value choice. Furthermore, this view causes serious problemsin judicial practice, which results in the violation of legislation and theory in practice.So joint and several liability cannot be the foundation of ISPs’ tort liability.In chapter2, two theories exist in China, the first is that notice and takedownregime is exemption clause and the second is that fault liability is the principle of ISP’s tort liability. However, these theories are of logical contradiction and cannot coexist. Inaccordance with China’s legal system, notice and takedown regime should be centeredon liability fixation, which is bound to exert a series institutional impact upon relevantlogics and practice. Meanwhile, empirical facts show that the notice and takedownregime does not achieve its legislation aim effectively. This phenomenon happens onaccount of that ISPs take selective law-abiding attitude which is formulated accordingto the interests of themselves.In chapter3, there are different opinions in academic circle on how to interpretthe word “knew” in article36of Tort Law, although legislations and juridical practicesseem mutual consistency. The origin of this phenomenon lies on the conflict of twotheories that ISPs should knew and ISPs do not obligated for censorship. The theoryISPs should knew cannot be justified, and it is also the result of misunderstanding ofUSA legislation. The reasonable approach to prove the knowledge of ISPs is throughpresumption rule from procedural law.In chapter4, characters of internet lead to the traditional model of legal relief thatremedies of right holders against Internet users is very difficult to realize. In order tosolve this problem, one approach is that to make ISPs liable for users’ infringement.There are three important theories including fault theory, loss spreading theory anddomination theory which could justify the liability of ISPs. All of these three theoriescan explain partial experiences. However, none of them can explain all. Based on factsof legislation and judiciary, it is concluded that a revised theory of domination theorycan explain most of them. The revised domination theory leads to a series ofsystematic effects.In chapter5, the reconstruction of the theoretical foundation of ISPs’ liability willmakes systematic influences on other relevant theories such as the general theory ofTort Law, and the formation of tort liability. For example, it enriches the objectiontheory of Tort Law; the formation of liability between ISPs and internet users shouldbe proportionate liability; and it clarifies the compensation that ISPs should afford, etc.In chapter6, based on empirical facts of internet regulation, approaches ofinternet regulation can be concluded into two modes: internet service provider orienteddoctrine and internet user oriented doctrine. Chinese regulation mode is a typicalinternet service provider center doctrine. In the future, we need to make efforts on twoaspects: one is that regulating the internet users effectively through technology and regime. And the other is taking the internet tort theory into the traditional tort liabilitytheory system.