| The rapid development of the Internet industry has exerted profound influenceover the life style, even the way of thinking in human society. On some level, thenew-born social relations have failed the existing legal theories and system of rules. Inorder to adjust these new-born social relations, the Legislatures, Judicial authoritiesand Administrative organs have designed new rules, and the relative academic studyis just unfolding. On the basis of reference to advanced foreign instances of legislationand domestic legal practice, the Article36of The Tort Liability Law established thebasic rules in Network Tort for the first time, which provides the courts with legalgrounds, and the closely connected parties with behavior guidance. Especially the2ndparagraph of Art.36, which was created in reference to the “Safe Harbor Rules” fromthe laws of The United States, set up the Notice Rules, of which the core concept is“Notice”, and the new rule even extended the application from copyright to almost allthe personal rights and interests. However, the rapid development of Network industryhas increased the uncertainty obviously, hence there’ re still some gray areas for theunderstanding and application of existing rules.As the primary object of regulation, the concept of Internet Service Provider(“ISP”) has to be defined accurately, which is supposed to be valued according to therelative technical standards. What the ISP provides is just “service”, i.e. The technicalmeasures, which doesn’t include the adjustment on contends, so the Internet contentsprovider is not one of the objects. The notice that is sent to the ISP by the infringeddose not need to involve preliminary proof material. A proper notice is supposed to becontained with abundant information to help the ISP confirm the identification and theway of communication of the infringed, especially the location of the argumentativeinformation. And the best help would be the precise URL, without which moreabundant information will be needed. Basically speaking, a proper notice is supposedto be in written forms, the written forms, however, shall not be limited to “be putdown in black and white”, particularly in those areas with better developedmarket-oriented economy, the form of E-mail should be even more probative.The ISP is supposed to take necessary measures in a “timely manner” upon thenotification. The definition of “timely manner” shall be determined on considerationover a variety of factors, including the nature of Network services, the category of therights and interests those have been infringed and the accuracy of notice, etc. Theprofessional ISP with better reputation and more influence shall be under more strict standards when the manner is “timely” or not is considered.“To take necessarymeasures in a timely manner upon the notification” should be regarded as anexemption, but not a subject to the liability.The notice will lead to two results: No.1, the ISP is supposed to take necessarymeasures in a “timely manner” upon the notification. As to the “necessarymeasures”, the infringed is entitled to come up with his own argument, however, thefinal decision is up to the ISP; No.2, if the “infringer” does not agree with theestablishment of “tort”, he shall be entitled to come up with counter notice. Thesystem of “Notice-take down” and “Counter Notice-Recover” balances different sortsof rights and interests, including but not limited to freedom of speech, personalinterests, the right t know and the right of supervision,etc. Meanwhile, this systemfrees the ISP from heavy duty of examination, so ISP will be able to devote moreability in creation of technologies and management, which will lead to a betterdevelopment of the Internet industry. |
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