Study On The Third Party Liability Of Internet Service Provider

Article36of “Tort Liability Law” in2009has stated the Third Party Liability of InternetService Provider, which puts an end to the lack of internet torts legislation in civil law area.The theory of technology neutrality and aiding infringement inherited by Article36hasrealized an agreement with international legislations. However, its nature of transplant andbrief have perplexed the judicial practice. This paper is meant to analyze on this point.The paper is divided into six parts:Part I. States the basic concepts of the internet tort, the Internet Service Provider, theThird Party Liability; Categories the Internet Service Provider according to internationalcriterion. The categories are as follows: Internet Information Transmission Service Provider;Internet Service Provider; Internet Content Provider and Information Locator Service Provider.Meanwhile, the features of Third Party Liability on Internet Service Provider are introduced:the virtuality of internet environment, the versatility of tort subjects, the technique of torts,and the uncertainty of damages.Part II. Transversely introduces some international classic legislations like “DigitalMillennium Copyright Act” in USA and “The EU Directive on Electronic Commerce";Longitudinally introduces legislations on Third Party Liability of Internet Service Provider inChina, based on which the features of Article36are abstracted, namely: innovative legislationidea, condensed clause statement and the balance of various interests.Part III. Focused on two basic legislative issues: in terms of legislative ideas, thetechnology neutrality should be acknowledged and inherited so as to achieve the aims ofrationally balancing the protection of private rights; in terms of liability, although the indirectinfringement of copyright is the source of Third Party Liability on Internet Service Provider,Article36mentioned before did not take it as a whole, while holding to traditional tortstheory to establish the aiding infringement theory instead.Part IV. According to the legislation thought of technology neutrality, interpretation theory on Article36is achieved. Clause1, Cause for Responsibility should be specified andFault Responsibility Principle should be upheld. Clause2, in Notice and Takedown Rule, thenature of notice should be clarified, namely, notice is the express for right of claim, which hasno executive power on judgment and its function should be viewed as part of imputationelements as well. Besides, the measures to move should not be restricted to legal statements,everything which can restrain the transmission of tort information should be considered asreasonable taking-down measures. Clause3, in terms of subjective judgment of Third PartyLiability on ISP,“know” should be interpreted as “fully aware of or should aware of”, whichnot only agree with the international legislations but also is a limit to technology neutralitytheory.Part V.“The First Case on Blog in China” is comprehensively analyzed on normativeinterpretation to Article36. The paper claims that when a loophole appears in Article36, ananalogical interpretation should be made according to “Regulation of Information NetworkDissemination Right Protection”, and the difference between internet infringement and mediainfringement should be pointed out.Part VI. In terms of system perfection and legislative proposal, the paper claims thefollowing paths should be taken for perfecting Article36, namely, laying down the systematicand perfect judicial interpretation; Applying legal interpretation rules comprehensively;Discerning and fixing the legal loopholes.