Research On The Duty Of Care Of Internet Service Providers

Based on the latest development of tort liability theory and duty of care theory of Internet Service Providers,this dissertation reviews the legislative and judicial practice of tort liability of Internet Service Providers in major countries and regions of the world,and provides a new demonstration for the theory of the duty of care of Internet Service Providers by using the dogmatics of law and economic analysis of law.This paper aims at constructing a scientific and complete research system of the duty of care of Internet Service Providers rule system by investigating the following questions: What is the system orientation of the duty of care of Internet Service Providers? What is the theoretical basis and legislative model of the duty of care of Internet Service Providers? How should the duty of care of Internet Service Providers be judged? How should the duty of care of Internet Service Providers be applied?Chapter 2 discusses the system orientation of the duty of care of Internet Service Providers.The research on the duty of care of Internet Service Providers is under the framework of tort liability rules of Internet Service Providers.In essence,the tort liability of Internet Service Providers is an indirect tort liability,which has the particularity of subject identification and the particularity of application field.From the two aspects of current legislation and value judgment,the principle of liability for fault should be applied in the field of tort liability of Internet Service Providers.The core position of duty of care in the determination of tort liability of Internet Service Providers is embodied,which provides an objective evaluation criterion for the existence of fault of Internet Service Providers.In addition,the duty of care overcomes the inadequacy of regulation on the infringement of omission of Internet Service Providers from the perspective of "facts constitute the proper nature",and overcomes the generalization of the infringement liability of Internet Service Providers from the perspective of "illegality".Chapter 3 analyses the theoretical basis and legislative model of the duty of care of Internet Service Providers.The nature of indirect liability determines that the tort liability of Internet Service Providers is in a dilemma under the traditional subjective fault theory.The rule value of the duty of care,such as the criterion of objectivity of fault,the generator of rules of conduct and typing analysis tools,makes it most suitable for the determination of tort liability of Internet Service Providers.Therefore,the duty of care of Internet Service Providers has been established in theory.Through the analysis of the legislative practice of tort liability of Internet Service Providers in the world,we can draw a conclusion that the process of statutory tort liability of Internet Service Providers is the process of establishing the duty of care of Internet Service Providers at the legislative level.According to the current legislation and judicial practice in the field of tort liability of Internet Service Providers in various countries,there are three core applicable rules of the duty of care of Internet Service Providers,namely "notification-counter notification rule","red flag rule" and " rule of effective measures to stop infringement ".Chapter 4 demonstrates the basis for determining the duty of care of Internet Service Providers.The determination of the duty of care of Internet Service Providers consists of two parts: the objective determination of the establishment of the duty of care of Internet Service Providers and the subjective determination of the violation of the duty of care of Internet Service Providers.The former emphasizes the establishment of the duty of care of Internet Service Providers on the basis of "predictability"(the characteristics of infringed rights and interests)"neighborliness"(the types of n Internet Service Providers)and "fair and just policy considerations",while the latter emphasizes the establishment of the duty of care of Internet Service Providers on the basis of subjective criteria such as "whether there is infringement profit","whether there is human intervention" and "whether there is repeated infringement".The factors determine a reasonable "rational person standard" so as to provide a basis for judging the breach of the duty of care of Internet Service Providers.Chapters 5,6 and 7 elaborate the specific application of the duty of care of Internet Service Providers.According to the consensus reached by the legislative and theoretical circles in the field of network infringement rules,there are three core rules to determine the tort liability of Internet Service Providers: one is the "notification-counter notification rule" to determine the "state of know" of direct infringement by Internet Service Providers,and the other is the "red flag rule" to determine the "state of should know" of direct infringement by Internet Service Providers.The third is the "rule of effective measures to stop infringement" after Internet Service Providers satisfy the requirements of knowledge.The last three chapters of this dissertation construct a complete system of the specific application of the duty of care of Internet Service Providers by sorting out and evaluating the statutory duty of care of Internet Service Providers in these three rules and identifying the types of general duty of care.