Research On “The Notification Rule” Of Network Tort Liability

Our country's “notification rule” derived from American “safe harbor rule”.With ten years' legislative practice and judicial practice,we finally established “the notification rule” by law,which is included in the Tort Law.In addition,we enacted two Judicial Interpretation to refine the rules,and the “notification rule” has been marked by the stigma of China.Now,our “notification rule” is different from American “safe harbor rule” in some ways like nature,application and element.The“notification rule” involves three subjects: the network service provider,network users and the infringer,but the Tort Law does not specify the network service provider.There is not clear definition and classification in academia neither.Due to the consideration of public policy and the characteristics of the statute law,the network service provider of Article 36 of the Tort Law shall be interpreted in a broad sense.However the subject of the “notification rule” shall be construed in a restrictive manner,and it mainly refers to Internet access provider(IAP).Effective notification should be in line with legal requirements in the form and the content,and the network service providers should perform a corresponding degree of review obligations.Such review is passive.Furthermore,the network service providers should take necessary measures in time as soon as they get effective notification.At the same time,the person who sends the notice should bear the liability for his/her error.Although our country's “notification rule”expands its application scope to personal rights and interests,its regulations are different from those of information network transmission right,which result in inevitable conflict of law that need to be solved.First of all,the “notification rule”expending relates to a balance of interests between the freedom of expression and the protection of personal rights.The expansion of the “notification rule” is reasonable for the characteristics of network tort,hysteresis of the statute law,and limited freedom of expression.Secondly,because of the extreme importance of personal rights and the infriger's weaker ability of self-protection in the case of network tort,the appropriate differences of the “notification rule” between the information network transmission right and personal rights and interests are reasonable.It is noteworthy that the judicial interpretation of the protection of personal rights and interests does not provide “ notice-transfer rule” and “anti notification rule”,and the legislators did not give full explanations.In fact,such an approach will lead to conflicts in the legal system,and deepen the imbalance between freedom of expression and personal rights and interests.In the application of “notification rule”,the network service provider will bear the corresponding costs for necessary measures and notice-transferring.However,the law does not regulate the final obligation of such charges.Due to the risk-control theory,income consistent with the risk theory and corporate social responsibility theory,the network service provider shall meet such a obligation.