On The Internet Service Provider's Fault In The Tort Of Internet Privacy

With the continuous social and economic progress and the extensive application of network technology, there are more and more issues involving network tort, including a large number of cases of internet privacy tort. Internet privacy tort not only brings great physical and mental harm to the victim, but also brings incalculable economic loss. This makes us give a high priority to internet privacy tort.In the internet privacy tort, internet service provider often plays an important role. In the online world, Internet service provider provides Internet intermediary service for network users. Only by network service providers around the world, the computer can break the geographical limitations, associated with each other, and allow people to share resources. Through the Internet, people can access the most extensive information and data. All of this is finished by Internet service providers'hand. So to speak, Internet service provider is the backbone of network information transmission, the industry of network services will become the backbone of the industry in the Internet age.Therefore, currently the study of a large number of internet privacy torts can not depart with the investigation of internet service provider. The most basic and most fundamental problem of tort liability of internet service provider is the imputation principle of tort liability. The imputation principles of tort liability resolve the basic issue of civil liability.First of all, in the internet private tort, the network service provider's fault should use the principle of liability for fault. It is due to: First, our current law provides that the principle of liability for fault as the general imputation principles of tort; Second, application of the principle of liability without fault on the internet service provider is too harsh to develop our current naive network industry and our whole society; Third, the presumption of fault is a special case during the procession of application of liability for fault; Fourth, the tort liability of internet service provider and the traditional tort are essentially the same in nature, that is to say both of them offend others civil rights on fault without permission of law. Therefore, it should apply the principle of fault liability just as the traditional tort.As most countries of Continental Law, Chinese scholars generally adopt subjective fault theory, viz the fault is a subjective state of mind. Fault is a subjective concept, it is a kind of subjective state of mind when the perpetrator implement an act. As for the issue of defining the fault in the behave of internet privacy tort, we should analyzed two kind of cases, viz intention and negligence.In the core content, intention is understood as a behavior that somebody "knowingly and intentionally" cause harm to another person. Internet service provider's intention in the internet privacy tort is a kind of mental state that they know their behavior will violate the privacy of internet users, while wish and allow such results occur. Regarding the internet service provider's intention, the judge criterion is whether it is an offense. Under the condition without presence of particular legitimate reasons, violating law regulation automatically constitute fault, and all of this belong to the category of intention.It is very complex to identify internet service provider's fault. Fault refers to the act that perpetrators do not follow the standard and rule according the law and common standard then and there, or simply to say that under the circumstances he violate the request of society. Under the condition that internet service providers owe to foresee that their actions will bring harm to the privacy of users, because of their negligence, or slacking off ,but do not foresee the danger, and violate the privacy of network users, internet service provider have fault.First, there are debate about subjective criterion and objective criterion which was used to identify the negligence. Judging internet service provider's fault in internet privacy tort should adopt the objective criterion. Because no one can accurately grasp the real intentions of perpetrator, they can only evaluate perpetrator's subjective intention according to the behavior. Adopting objective criterion can also play the better role to precaution and education. Moreover, adopting objective criterion has advantage for the protection of the rights of victims. In objective criterion, the extent of conduct standards of perpetrator should not take "the most advanced standards," should not take "the general standard", but take "above average standards."In some exceptional cases, the fault of the internet service provider is exempted. The exclusion of responsibility for the violation should consider several factors: the time, the disclosure of violations according to the require of victim, the simple transfer without editorial changes, refusing to provide services for users who repeatedly implement tort, industry standards and industry convention. In some cases, you can regard that there is no fault about internet service, and the internet service provider need not bear tort liability. However, when we carefully analysis, the question must be well coordinated in order to better determine the fault of the internet service provider.In the internet privacy tort the application of internet service provider's fault in practice can discuss from two aspects, determine the scope of tort liability and determine the scope of compensation.Fault is a necessary condition for bear tort liability, viz "no fault, no responsibility", the basic element is requiring we to give an objective assessment of harmful behavior. In internet privacy tort, internet service provider's fault shows they ignore the legitimate rights and interests of people and others and neglect their obligations and rules of conduct. Due to this neglect and ignorance, they should be condemned and punished. So we think that the fault of the internet service provider is the necessary conditions for them bearing tort liability.In internet privacy tort, internet service provider's fault plays an important role for determining the scope of compensation. Intention is the most serious form of fault, at this time the internet service provider should bear all liability. The negligence has a lighter extent, only means we do not implement the duty of general care, and bring to loss. In the case of ordinary negligence, the internet service provider only needs to compensate the losses which cause by their direct damage. However when Internet service provider have a great negligence, they should compensate all the losses.During the process of Courts adjudicating cases, the principle also is used. In the trial result of China's first case of "human flesh search", the reason why the three defendant's conviction is different is that they have different degrees of fault. This directly reflects the judgment of the court against the defendant's fault.