Discussion On Network Information Transmitor's Responsibilities In Perspective Of Information Control

Since Busheng VS. Baidu, the quarrels around network information communication right has been never ending. In one hand, the right holder, who admits"Red Flag Rule", requires Network operations and service centers to bear the tortious liability. On the other hand, Network operation and service centers, believing"Safe Harbor Rule"to evade related responsibilities, emphasize non-realization of technology. These kinds of cases emerge in an endless stream, but there's no dominant ideology. In this way, totally different judgments happened in different districts. Even the same judgment in two cases, the basis and reasons of the judges are really different.The author believes that, regulation on rights and obligations in this field by sociality of information communication directly results in above mentioned disputes. In his opinions, on the base of perfect of existing rules, the technology reason shall be included and considered. The effective method to evade different opinions in the above mentioned cases is the technological analysis on the participants and participants'rights and obligations in the information network transmission. In China's legislation system, the concept of transmitter's responsibilities has not been introduced. The main reason is that the definition of network transmission more often closely related with technology,but parties who master technology rules are always technological company and research centers, not legislators, who usually write regulations by legal theory. But these legislations and regulations, which could not reflect correctly and deeply, are meeting with more and more challenges.The author defines the Network Information Transmitter is the conclusion of legal subjects during network information transmission from certain information source to object information, including information publisher, ultimate receiver, internet service provider, internet date center, internet content provider, transmission sharable service provider. The transmission shareable service provider can also be classified into consignation service provider, platform service provider, search service provider and network linking service provider.With the development of Internet and cost reduction of hardwear, transmitter is possible to do instant analysis and control data stream. ISP, as transmitter, can realize analysis, check, filter and compare information transmitted without considering cost, in this way, there's no technology obstacle on information control. For example, the search service plat, such as search engine, can control information during the whole process. The transmitter, who transmit voice frequency and video frequency, can get information before the frequency upload, analyze the aforesaid frequency and manual supervise during transcoding, can perfectly analyze and control information.The author's basic points are as followings:â… . The technology view can better understand the problem, technology process in a more comprehensive way. In this way, we can know whether certain behaviors related with due diligence owns feasibility in particle. What's more, it'll help judgment on certain legal nature and identification of legal liability.â…¡. The information transmission view can resolve ambiguity of some legal rules, which can make legal rules more particle. For example,this method can resolve the disputes between the Safe Harbor Rule and the Red Flag Rule.â…£. The information control is a basic judgment standard of transmitter's duty of due diligence. The analysis on information control can easily define the duty of care for the transmitter.In a word, during the protection of network transmission, we shall not limit the judgement on broadcast behavior with the social basis, but include transmission behavior. As such, it will promote right protection and industry development.