Study On Security Obligations Of Internet Server Provider

The rapid development of Internet and network technology has been changing with each passing day, has brought great convenience to people's life, at the same time, the rights and interests of civil subjects is being accompanied by a variety of online infringement. The internet service provider (ISP) is the transmission center of network information. At a certain level,it plays a similar role to the store,hotel and other place of social managers, mass event organizers. So, in the protection of the legitimate rights and interests of civil subject in the Internet space, ISP must carry out reasonable and effective actions to prevent and reduce Internet infringement in time. In essence, this is one of the security obligations (hereinafter referred to as "security obligations") that ISP has to shoulder. From the side, the Internet developed in today's society, the so-called security obligation has transcended the traditional circle of physical and tangible property protection, extended to some virtual property or other non-traditional legitimate interests.Accordingly, the application of security obligation also is beyond the traditional physical space, extends to the virtual space. Therefore, it is necessary to refer to traditional theory of security obligation to increase the study of new type of security obligation. This research will be beneficial to guide the security obligation to take reasonable and lawful measures to prevent the third party from infringement in the field of control. At the same time, the research will also provide the necessary legal basis for assuming that ISP has security obligation.This article is divided into four parts. The first part researches the theoretical foundation of the security obligation of ISP. In terms of the particularity of network space,this part is based on the basic principle of civil law, economics and sociology to study the security obligation of ISP. There theoretical foundations are the honest credit principle,risk control theory, the profit reward theory and saving the social total cost theory.Comparison, internet space is similar to public space on the function. There is also no restriction of application of the security obligation system. And ISP conforms to the characteristics of the operator. As a result, the introduction of security obligation is feasible in internet space. It will also be conducive to preventing the infringement of the legitimate rights and interests of other people on the Internet.The second part mainly discusses the related problems of cognizing security obligation of ISP. This part firstly discusses the traditional standard of violating the security obligation. On the basis of traditional standards, consider the characteristics of network space, like virtuality, openness, interactivity. The standard of violating the security obligation in network space can be divided into four aspects: legal standard,industry standard, general standard and specific standard. Then, study the basic content of ISP. The content includes prevention possible risk, review, eliminate, and prompt the source of risk and remedy damager, etc.The third part discusses the civil liability of violating the security obligation of ISP.First of all, study the responsibility form of ISP. It is divided into his own responsibility,the supplementary liability, joint and several liability. But study the theory of the four different opinions in the form of liability, the author believes that the four different opinions are not reasonable in the Internet infringement. Based on the theory of common tort, it is not reasonable for ISP to undertake joint and several liability. But it is more suitable for adopting joint and several liability of the common tort. Secondly,this paper studies the scope of compensation of ISP. Finally, this paper also discusses the liability exemption of ISP. The liability exemption of ISP is based on the safe haven rules for the Digital Millennium Copyright Act in USA and Directive on Electronic Commerce in Europe Union. The safety port system of our country's regulations on the protection of internet rights also draws on some of its provisions. Although our country's notification removal rule is regarded as a kind of liability exemption, but the author thinks that it is not an escape clause, but it is an imputation clause.The fourth part is the Suggestions of perfecting our country's security obligation system of ISP. First of all, this part points out the legislation defects on security obligation system of ISP, such as the lack of basic laws, the theory of ISP to bear joint liability is insufficient, and the notification removal rule is too simple. Then, the author gives the corresponding Suggestions for the above three problems respectively. For example, according to the lack of basic laws, the priority is to perfect the legislation;aiming at the problem of responsibility form, should compare different tort, apply different responsibility form, introduced according to the duty form; aimed at setting up simple notification to remove rules, should be clearly specific treatment methods for different subjects received the victim infringement notification. And think that the network of orderly development not only needs the legal regulation, but also needs more of the participants in the network safeguard and supervision.