Internet Service Provider's Tort Liability

The application of network technology has led to the birth of the Internet,the emergence of the Internet can be said to be one of the greatest inventions in human history.From the earliest Internet has emerged,After just fifty years of development.The network has spread all over the world,Network has been widely used and developed in all fields of society.The breadth and depth of influence is immeasurable,it has changed the traditional business model,thinking and working and living habits.However,any progress of society and the emergence and development of new things will bring a series of legal issues.With the application and development of the network technology,the network disputes are increasing rapidly,and the phenomenon of infringement on the Internet is also endless.The existing legal system is also challenged by the growing network of technologies.The first part of this paper defines the connotation of network service providers.Network information communication is the transfer process between information providers and information receivers.In this process,whether it is the generation of information,establish a network communication platform,install and maintenance of a variety of network infrastructure,and continuously updated service technology and service content,each link cannot do without the Internet service provider.From a technical point of view,it is not difficult to understand the network service providers,but the law on how to finalize the network service provider? There is no uniform definition of Chinese academic circles.Includes according to the network service provider to achieve the functions of different,different,engaged in the network service provider in the network information in the role of providing network service providers of different services are defined;In current foreign legislation,network service providers are classified according to different types of exemption provisions are different.Comparison of Legislation Widely Used in Foreign Legislation.In this paper,the author thinks that the network service provider in the tort liability law is a network access service provider and a network content service provider.The second part discusses the imputation principles of tort liability of Internet service providers.The so-called imputation principle is to determine the legal basis for the attribution of responsibility.The principle of imputation is to solve the problem of attribution of responsibility.The doctrine of liability fixation plays a key role in tort liability law.The main viewpoints of the academic circles on the application of the network tort liability include the application of the doctrine of liability fixation and the application of liability without fault.The principle of liability for tort liability of Internet service providers has changed from strict liability to fault liability.Network tort of our country should adopt fault liability for fault liability as a subjective imputation principle,when the network service provider has subjective imputation can cause(or intentional or negligence)shall bear tort liability,and from the legal angle and the balance of rights and obligations of both parties point of view,using the fault liability is more suitable.The third part discusses the tort liability of Internet service providers.The thirty-sixth paragraph is a separate liability,there is little controversy here.However,the nature of the thirty-sixth types of the second and the third types of liability is a dispute between the joint and several liability and unreal joint and several liability.I agree that the joint and several liability here is an unreal joint.Because the network service provider so the responsibility of the management of public places or similar educational institutions,and the two main body of tort liability law the provisions for the supplementary liability,which is a special kind of unreal joint liability.At the same time,if the joint and several liability is adopted,it can not effectively guide the behavior of the network users in the legislation orientation,but it gives the network service providers a heavier duty of review and attention.Network service providers and network users constitute a joint tort,joint tort based on the two parties bear joint and several liability,which is China's network service providers to explain the joint responsibility of the mainstream view.But some intellectual property scholars also called on us to learn from the Anglo American copyright law theory,the establishment of indirect infringement system.But this is not necessary.The fourth part discusses the limitation of liability in the implementation of the legal liability of tort liability.The main analysis of the thirty-sixth paragraph of the "notice clause" on the limitation of liability for infringement of the Internet and the 36 article of the "know clause" on the limitation of liability for infringement of the Internet in the second paragraph.Finally,in view of the relationship between "notice clause" and "know clause",the author thinks that there is no parallel relationship between the two clauses.The terms of the notice shall be deemed to be generally applicable,and the terms of the understanding shall be understood as special or exceptional conditions.