The Study On Legislative Perfection And Tort Libility Of The Internet Service Provider

The network ages has promoted the overall development in science, culture andeconomy. Internet Service Provider (ISP) which is playing an important part in theworld of internet has made significant role in the sound and sustainable developmentof internet industry. At present, the network torts in China is daily increasing, however,the few study on the problems of liability for torts of ISP has made it difficult forjudicial practice and the balance of the interests of the oblige and ISP effectively. Thusthe study on the liability for torts of ISP has made realistic significance for thedevelopment of internet industry.This paper aims to make comparative study on the rules of the ISP’s tort liabilitybetween China and America to explore the shortages and lack in Chinese legislationof ISP’s tort liability. The theory and practice of the ISP’s tort liability in America canserve as a good model in legislation for China and some rules deserved drawn upfrom can be absorbed into Chinese legislation. In this paper, the author starts from therelative concepts of ISP，the categories of the services and principles for classifyingthe responsibilities, describes the composition of elements of tort liability and focuseson the analysis on the accordance and rationality of adopting the principles of the faultliability of the ISP’s tort liability. On the basis above and according to the differentkinds of services the ISPs has offered, the respective analysis is made on thecharacteristics, definition of responsibilities and obligations of their tort liability ofinternet access provider, internet content provider and internet platform provider,when the relative problems about the ISP’s tort liability, the author makescomparative study on the rules of ISP’s tort liability in America and relativelegislation and rules in China with the methods of comparation and case studying andso on. In the comparative study on the safe harbour rules, this rule manifested in theDMCA is listed in detail, and the restrictions of the ISP’s tort liability with fourtechnical functions is described. The differences of the “Notice and Delete” rules inChina and America especially the effects on the ISP’s tort liability due to thedifferences of effectiveness of the “Notice”, and thus the problems and lacks ofChinese absorbtion of the safe harbour rules. Then, the author makes comparativestudy on the differences of the secondary liability of copyright between China and America, the changes of the secondary liability rules with the development oftechnology from the perspective of the history. The definition of vicarious tort liabilityand auxiliary tort liability has become more clearly, the definition of the elements of“knowing” of the ISP has been separated from the “Notice” in DMCA and thedefinition of the ISP’s tort liability has become more routinization.Based on the comparative study on the restriction of the ISP’s tort liabilitybetween China and America, the author concludes some problems existed in theChinese legislation of the ISP’s tort liability and makes some legislative proposals forsolving these problems with the exception to help the perfection of the legislation ofthe Chinese ISP’s tort liability.