On Civil Liability Of Internet Service Provider

Since the birth of the Internet, the number of web users has been expanding by the rate of more than 10 times every year, and the number of Internet organizations and web sites has also been exploding at an extraordinarily fast rate. On the basis of this, Internet Service Provider (ISP) is developing rapidly; however, this generates a lot of new legal problems and brings new challenges to traditional legal system. One of these is how the civil liabilities of ISP should be defined.ISP is one significant component of Internet cyberspace. ISP has been involved in many civil disputes, especially disputes of intellectual properties. ISP's liabilities are a hot topic, and the legislation process in this area is extraordinarily fast in many other countries. For instance, in the United States, "Digital Millennium Copyright Act" defines many principles and regulations for the Civil Liabilities of ISP, which are very different from traditional legal system. But the current legal system in our country has not specifically regulated the Civil Liabilities of ISP. In December of 2000, the Supreme People's Court published "The Interpretation of Law Application Issues In Cases Concerning Internet Copyright Disputes", which was amended in December of2003, only partially regulates the infringement liabilities of copyright, and it includes only some basic principles, so it is hard to be followed and applied. Therefore, to correctly define ISP's legal status and civil liabilities in contracts and infringement cases not only affects the quality of judicial protection in our country and makes ISP's liability risks predictable, but also affects the existence and development of the new type of web service industry and the interests of thousands of web users.Generally speaking, ISP is the media providing service for web users, but the real reason for web's existence is that it can provide the most convenient and efficient service for our communication. To make communication possible on the web, the third party is needed to provide services such as physical web, connection, storage, linkage and search engines. Thus, the introduction in Chapter 1 summarizes the concept, characteristics, function, and civil liabilities of ISP. On the basis of this, the following part does further analysis.Web transactions can be done at any time, but they can only be accomplished with the help of ISP. In Chapter2, ISP's legal status and civil liabilities in contracts are analyzed in details by analyzing the ISP's function in the web transactions and actual cases.Section 1 analyzes that ISP should take basic liabilities to pass messages for web users and provide the identities of the other parties in the Internet service contracts. Although strict contract liabilities are applied to ISP, it is necessary to regulate restriction of liability for ISP. If ISP can prove the damage to a web user is not its own fault, and it is caused by some technical reasons or some objective reasons, then ISP does not need to take any liabi 1 ity. Otherwi se, it should Lake the contract 1 iabi I i ty, but it only needs to pay the web user the direct losses.Section 2 analyzes that ISP possesses the statuses of both "counter leaser" and "new type of web media" in the on-line transactions, which is defined in item 38 of Consumer Protection Act. ISP takes responsibilities to check formally and store the messages of the both transaction parties' identity, or to check formally and supervise reasonably the messages of transaction after the event. It is required that those messages should be up to "superficially reasonable standards". If one of the parties suffered losses because of false advertisements or false messages from other parties, which actually relates to the liability racing problem, then ISP does not need to take any liabilities generally, but when an user as a "counter renter" can not be found after the renting period and it is actually ISP's fault, ISP should pay the losses to the users.Because ISP's functionality is only to establish and run a system for the web's normal running, a party has to resort to ISP's web or system when it violates laws on the web. In this case, the focus of the discussion is how ISP should take infringement liabilities. Chapter 3 analyzes ISP's legal status and civil liabilities in the infringement cases by the approach of comparative law, and using the advanced experiences of statute laws and judicial cases in foreign countries, and the related laws such as "The Interpretation of Law Application Issues In Cases Concerning Internet Copyright Disputes" regulated by the Supreme People's Court in our country.Section 1 analyzes the ISP's functionality to publish, pass, store, or delete a message on the web. This determines that ISP's status is between media and indirect infringer in the transmission of a message. ISP takes responsibilities for the consequences only if ISP does not stop the infringement with the knowledge that one party is infringing other parties using its service, or encourages, participates, and helps the infringement to other parties.Section 2 analyzes the types of infringement liability, includedirect liability, vicarious liability and contributory liability. Contributory liability is the most important type.Section 3 analyzes that as a criterion of liability, fault liability should be applied to ISP. In the early days, the criterion of no fault liability was applied to ISP in many cases, but it has been proven that it is divorced from the realistic ability of ISP to supervise the web, and it is gradually transferred to the criterion of fault liability, but no fault guessing can be used. In the meantime, some objective factors, such as technology, service objects, the specialty and complexity of service environment, should be considered to determine the legal liabilities which should be taken by ISP.Section 4 analyzes that restriction of liability should be established in the law system in order to encourage ISP's services and make ISP's services more predicable. ISP shouldn't take any direct liabilities when it accords with some demands. As contributory liability, besides the criterion of fault liability, a principle of "warning + elimination" should be established to make ISP's common infringement liability more objective.Above all, ISP as the third party providing service for message communication, ISP's functionality is to provide the forum and space and technology, ISP is the new type of web media. Current legal system doesn' t be applied to define ISP's legal status and civil liabilities directly or simply or completely. To make new legal system or to clarify the current legal system how to be applied for ISP should refer to the advanced experiences of statute laws and judicial cases in foreign countries. On one hand, ISP should guarantee to provide good service for web users, stop transmission of false or infringing messages to prevent losses if it is technically and economically possible, just for the safety of the Internet and the legal interests of web users. On the other hand, ISP should not take responsi bi 1 i t i esto monitor web activities. The restriction of liability should be established in order not to hinder the development of the web services and damage the interests of web users.