Research On The Tort Liability Of Internet Service Provider For The Legislation In China

With the vigorous development of the Internet industry, the Internet service provider is on the rise. Active participation in the all kinds of internet service providers make the spread of the network information content are more diversified and various network tort also arise.This paper introduces the internet service provider and the tort liability, analyzes the cognizance of internet service provider tort liability and elaborates the internet service provider tort liability imputation principle, constitutive requirements and responsibilities form three aspects of content to lay a theoretical foundation for the following content.For the concept of "internet service provider ", there is no clear definition in our current legislation in the academic circles about the definition and classification of the internet service provider differs widely. Representative divided into broad and narrow view. And general said argues that internet service provider refers to all information on the Internet provider and intermediary services, compared to say that the internet service provider is "channel" role and provide the host to store business online service provider. The direct infringement of internet service provider is direct implementation of infringing on lawful rights and interests of others. In addition, the tort including objective to provide information search, commodities trading services to help the network users of indirect infringement. Specifically include the behavior of the infringement of intellectual property right, personality right and property right. Thus, the internet service provider needs to individual responsibility because of direct infringement and because of neglect their own reasonable duty of care is not as jointly and severally liable with network users. Academic circles have different point of view for internet service provider’s tort liability imputation principle. Most scholars in favor of the fault liability principle and some scholars advocated no-fault liability principle. If the internet service provider under the network environment because of their fault implemented in violation of the provisions of laws or fails to perform the legal obligations, the holder because this kind of behavior and the actual damage and infringement and damage results have a causal relationship between the internet service providers need to bear tort liability.The tort liability law and the related administrative regulations and judicial interpretations have relevant regulation about the internet service provider’s tort liability. The terms of The tort liability law is a principle of regulations and the provisions of the general clause "notify" and "know" clause. The clause in The copyright law modified in 2001 not only on the network copyright infringement regulation and rules for the first time the "information network transmission right" in article 10 of the 12. Measures for the administrative protection of Internet Copyright in 2005 is the administrative rule only for internet service providers and regulations system of "notice- remove". The right of communication through information network was issued by the State Council in 2006 detailed provisions about "notice- delete" system more important rules on the four types of Internet service providers and ground of different relief for the four types. In terms of judicial interpretation, Supreme People’s Court in 2000, 2012, 2014 respectively issued Computer network copyright case interpretation, On the trial of infringement of information network transmission right law applicable to cases of civil disputes and Provisions of the Supreme People’s Court on the trial of some issues of applicable law in violation of personal rights and interests of civil disputes by information network. The judicial interpretation of relevant details made the explanation. Although about internet service providers tort liability laws and regulations have been enacted in succession, but there are also many problems such as imputation principle is too general, classification of internet service providers is not clear and notify the imperfect rules and subjective factor.Based on Chinese legal system is not perfect about the internet service provider’s tort liability, the relevant experience of other countries for reference is necessary especially in the United States, Germany, the European Union. Such as detailed to differentiate the type of Internet service providers, clear provisions apply the principle of fault liability. To waive the responsibility of the internet service providers who do the corresponding reasonable duty of care and timely processing of infringement information, in other words, safe haven rules shall apply. According to the foreign legislation experience and Chinese actual situation, internet service provider’s tort liability law system in China has a lot of need to improve. Including the principle of fault liability is widely applicable and fault-presuming principle applies in different situations. In order to determine the complex subject of tort liability according to the different service function and disclaimer the division of the type of Internet service providers is reasonable. To clear the pre-approved obligation of Internet service providers and afterwards monitor obligation. The specific contents of the notification system is perfect in order to both sides are reasonable and efficient processing method in harmful consequences occur. The meaning of the subjective factor is clear in order to reduce the disputes and differences.