A Study On The Liability Of Internet Sevice Provider Breaching Of Takedown Duty: Reviewing Article 36 Of "Tort Liability Law"

The twenty-first century is the age of Internet. Because of the liqudity and globality of Internet, people's freedom of speech and act is getting better guaranteed. However, there are more and more cases about Internet's tort. As Internet service providers, they should perform their obligations. Takedown duty is one of their important obligations, when they are breaching of this duty, they should bear the responsbility. Takedown duty is not a new one in the area of Internet. It first appeared in the field of network infringeent of intellectual property rights. Then, it appeared in our “Tort Liability Law” to protect civil rights. The regulations of Article 36 allowed takedown duty first appeared in the field of general civil tort for networking. At the same time, Article 36 provided the forms of obligations for those Internet service providers who are against takedown duty. Due to the protability and impacts by the “Intellectual Property Right”, the obligation system of takedown duty becomes very imperfect. Therefore, the “Tort Liability Law” is chosen as the foothold to deeply conduct a research into the obligation system of violating takedown duty first appeared in the field of civil right, as well as to propose a series of measures for improvement and recommendations.This article is basing on the question about Internet service providers' breaching of takedown duty system and describing the status and the cause of this problem, proposing the corresponding solutions. Finally, Article 36 is being evaluated. This article is devided into six parts.The first part is about the problem and its roots. This part first describes takedown duty and its presence of base. A correct understanding of this duty is an important prerequisite to set responsibility. Then, it introduces the problmes of breaching of takedown duty, such as the person liable is unknown, the dispute of liability principle, the liability form isn't reasonable and no relevant provision about inconsistent compliance of duty.The second part is about the scope of person liable. This part first describes the status of person liable when breaching of takedown duty, the classification standard of internet service providers are in disarray because of the non-uniform laws and regulations. What kind of internet service providers can become the person liable of breaching of takedown duty is not be sovled. Futhermore, this part proposes measures to classify internet service providers and define the scope of person liable.The third part is about liability principle clear. This part first describes the disputation of liability principle when person liable breaching of takedown duty, whether it is applicable to fault principle or no fault principle. Then, this part proposes the solution, determines to use fault liability principle, this principle has practical and theoretical basis.The forth part is about liability forms. This part is an important part of the article. It first proposes the liability forms when Internet service providers breaching of takedown duty and the dispution when using these liability forms. Then, it analyses the type of these liability forms and retorts the existing regulations about breaching of “direct takedown”duty, “notice-takedown”duty and “know-remove”duty. Finally, it puts forward a sound proposal.The fifth part is about inconsistent compliance of takedown duty. There isn't any relevant provision about inconsistent compliance of this duty so that this problem is waiting to be solved.The sixth part is about the perfection of the system about internet service providers breaching of takedown duty and the perfection of Article 36. For the four issues mentioned above, Article 36 should be timely perfect.