The Establishment And Undertake Of The Network Service Rovider Tort Liability

The development of the Internet is increasingly profound change people’s way oflife, continue to give new connotation and extension of our social relations. Thechanges in social relations largely changed objects and the way of legal adjustments.How to adjust the infringement on the Internet has become an emerging legal issueworldwide." Tort Liability Act”, enacted in2009by the provisions of section36ofthe network tort liability. Clear notice of the rules and know the rule of networkservice providers assume the tort liability, and provide a legal basis for manycontroversial practice network infringement cases. Because the tort liability ofnetwork service providers is the first provisions of the basic law of the country andthe Internet is a new thing. The understanding and application of the tort liability ofthe network service provider still exist a lot of gray area.Infringement established and commitment of the network service provider is anetwork subject requires clarifying. We should clear the concept of the networkservice provider if we want to do that. The network service provider is the agenciesthat provide information to the public through the information network or provideservices. Network service providers, including content service providers andtechnology service providers. The technical service providers including transmissionchannel service providers, information storage service providers, of cyberspaceservice providers and search engine service provider. Tort Liability Act use theconcept of the "network service provider" in Article36of, but it is not a specificinterpretation or classification. In my opinion the network service provider inparagraph1is the network content service providers, network service providers inparagraphs2and3of this article refers to the network service providers.Attribution of the infringement of the network service provider, whether fromthe imputation principle system view or from the point of view of fairness, shouldchoose to apply the principle of fault liability. The establishment of the networkservice provider tort including four aspects: the tort of the network service provider;infringer suffered damage; fact that there is a causal relationship between the tort and the damage; there is a fault of the network service provider. Network serviceprovider tort include as an infringement and nonfeasance. We can determine thenetwork service provider violations as an infringement of the premise by asobligations. A valid notice can be caused by network service providers as obligations.Therefore a valid notice to determine how effective notice is very important, alsofocus discussed. When there is no fault in the judge whether the network serviceprovider, can be combined with the understanding of the word "timely","necessarymeasures" and "know" ordinance to determine, can also draw on the "red flagstandard”Larger debate in the academic community about the nature of the tort liability ofthe network service provider, and some advocate the joint and several liability, andsome advocate a real joint. I agree with the latter point of view, that the joint andseveral liability in Article36(2) and (3) a real joint. We should respect the wishes ofthe people has been infringed on the choice of two joint and several liability applies.Network service providers and network users constitute joint tortfeasors, both jointlyand severally liable joint tort-based, which is the mainstream view of ourinterpretation of the network service provider jointly and severally liable. In myopinion the reason why the network service provider to undertake this joint andseveral liability, network users because it constitutes contributory infringement jointtort. Network service provider implementation of indirect infringement, against theinterests of the infringer. Different types of network service providers choose the wayof commitment to tort liability different emphases, the cessation of the infringement,eliminating the effects of an apology and compensation for the losses of these four.