The Substantive Examination Obligations Of The Network Service Provider

Internet service provider’s substantive examination obligation refers to aparticular network service provider for network users to present information on itsnetwork management and control platform for active review, and thus exclude illegalobligations infringement information. Internet service providers that act wouldconstitute a breach of the obligation not as infringement. Internet serviceprovider-specific, meaning that not all Internet service providers should bear thatobligation by key. In fact, the substantive examination obligation blocked in "safehaven rules." Rules haven from the United States’ Digital Millennium Copyright Act,"which gained widespread influence in the world. China’s laws and regulations oncopyright protection are also subject to the following rules, such as the relevantprovisions of Article22of the "Information Network Transmission Right ProtectionOrdinance." Haven rule states that under normal circumstances, the network serviceprovider in advance no obligation to intellectual legitimacy in its management andcontrol of information dissemination in cyberspace for active review. The theory ismainly due to the efficiency and economy of rational considerations. Since thebeginning of the "Digital Millennium Copyright Act," legislation, the Internet is stillin its early stages of development, the requirements of the network service providerfor network users to upload information for substantive review, would be tooburdensome and not conducive to the vigorous development of the network. Its moreintellectual property protection will have completed the task by copyright, thatcopyright infringement people found information to "notice-delete" rules tocopyright protection. Information unless the infringement is too obvious, so littleattention to be able to find a particular network service provider only if the rightperson receiving the notice, possible tort liability. However, with the rapiddevelopment of network technology, network service providers benefit from the safehaven status of the rules brought Protection injustice. Because the obligation toachieve substantive examination techniques with the development of networktechnology continues to improve, the network service provider to render its control cyberspace initiative to review the information, identify and eliminate illegal,infringing information is no longer part of the "too arduous "task. In another word,the copyright protection of human rights, the protection of the network serviceprovider’s freedom of movement, to the public for information on obtaining areasonable balance between these three, the development of network technology tobreak the original balance--Review of the efficiency requirements of the networkservice provider information to bear a reasonable review of obligations.Internet service providers undertake substantive examination of the legitimacy ofthe obligation not only depends on the reasonable breakthrough haven rules, and tobenefit from the current legislation and judicial practice of the new tendencies: Whilefollowing the traditional safe haven by the rules and the application of the rule in thebeginning to emphasize network service provider exemptions apply, but with thedevelopment of the network, in our legislation and judicial practice gradually formeda network service providers require to assume the obligations of substantiveexamination within reasonable limits tendencies. In addition, substantially the sameduties and security obligations examine mechanisms of action, safety and securityobligations could become a broader concept of substantive examination obligationsand constitutes the theoretical basis of the substantive examination obligations.Should fuzzy cyberspace virtual, face the reality of network communication,universal, comprehensive introduction of more inclusive security obligations,including the obligation to include substantive examination, together with the existinglaws and regulations to maintain order and to build a network of foundation.China’s existing laws and regulations, and less substantive examinationobligations for network service providers should bear. The author believes that thewords "Tort Law" Article36, paragraph3, of the "know" is defined as "knowingly"and "should have known" should "Tort Liability Act," in the first paragraph of Article37"other "be interpreted as including the" site "account. Laws should choose itssevere special provisions relating to the safety and security obligations, including theobligation to include substantive examination of certain types of network serviceproviders. By legislators clearly "presumption of fault" tort for breach of dutyapplicable substantive examination, in fact, necessary in the law. Meanwhile, industry associations, self-discipline convention industry to network service providers,including the obligation to include the requirements of the substantive examination bytheir actions can have a positive discipline and effective impact.