| The search engine,as one of fundamental Internet functions,has been the second main usage for Chinese citizens till 2015,following closely after instant message.While it is so convenient to people,cases of rights infringement caused by search engine have increased greatly.Bidding ranking service,one of typical search engine services,brings high risk to infringements of rights.This issue is becoming more and more serious.From 2008 to 2010,facts that ads searched by Baidu search engine which included a large number of false information were disclosed by social media,leading to sharp criticism on the bidding ranking consequently.In 2015,'The Death of Youth Wei Zesi' pushed Baidu company and the bidding ranking services on the cusp once again,and Baidu company was required by public to take legal responsibility for the incident.According to the principle of tort liability law,whether Baidu company should be responsible for the "Wei Zesi incident"depends on whether Baidu Company is obligated to censor the information published by it.Thus,this issue is regarded as a legal issue from a social issue.In order to judge if Baidu Company has the obligation to censor the information it publishes,it is necessary to clarify the legal nature of bidding ranking.However,since there is no consensus on the nature of the service in the academic circles,the judgment of such cases in practice has not been unified,and the rules of the policies are also different,the legal nature of the service remains in question.By analyzing the character of competitive ranking service,based on current domestic legislation and the comprehensive analysis through the view of comparative law,it is suggested that bidding ranking service is regarded as advertisements and the search engine service provider,as the advertisement publisher,should undertake the obligation to censor the content of the advertisement beforehand.The bidding ranking service is not only a kind of advertisement,and the tort cases occur typically within a network environment,therefore,the regulation of the service can not only be applied with the advertisement law,but also can be applied the law of tort liability.Unfortunately,the existing legal system fails to take into account the character of the bidding ranking service itself,and there are some flaws in the stipulation of the search engine service provider's prior censorship obligations.At the same time,there are some limitations in the analysis of the bidding ranking service,and there is a little literature on the obligation of the search engine service provider.The disjoint between legislation,theory and practice calls imperatively for a reasonable and operable system,thus,the author puts forward a "security obligation",which is a combination of automatic examination and manual examination,which runs through the service of bidding ranking,in order to make up the deficiency of the existing legal system.The "security obligation" stipulates what kind of censorship obligations the search service providers should undertake in bidding rankings.Different from the comprehensive examination stipulated in the advertisement law,as well as the 'safe haven rule' stipulated in article 36 of the tort liability law,it is a kind of 'security check'at present,as a filtered censorship model combining automatic inspection with manual inspection.Because the search engine service provider has the incomparable advantages of the professional technology and monitoring ability,and the competitive ranking service often brings the high profit to the provider,so the search engine service provider should assume a higher duty of care than the general Network service provider.According to the above duty of care,Security obligation has the following characteristics:1.The purpose of "security obligation" is to prevent the occurrence of infringement risk and to balance the interests of all parties;2.The 'security obligation'are different from the comprehensive review rules,which include the manual review.But there is a clearer boundary of the scope of manual review process,which will not cause a serious burden to search engine service providers;3.because the law cannot exhaust all types of infringement,'security obligation' should have considerable flexibility and give judges a certain discretion in practical context;4.'Security obligation' should have considerable sustainability.Beginning with the contract stage until the final online publishing of information,all the agencies involved with the process to provide a bid ranking service should have responsibilities according to the security obligation.According to the relevant provisions of the tort liability law and the advertisement law,and the development of the service of bidding rank in our country,combined with the characteristics of "security obligation",and on the basis of reference to the extraterritorial experience,the author puts forward the four main contents of "security obligation":1.The obligations of examine the qualification of the enterprises participating and to distinguish the common search results from the results of the bidding rankings in the stage of enter into a contract;2.The obligation of search engine service providers to automate the review of all advertising keywords;3.Search engine service providers make a manual review of some special keywords;4.Search engine service provider should carry on the continuous detection to the on-line advertisement.The emergence of any new technology and model,often accompanies by new social risks and legal challenges.During the process of dealing with these risks and challenges,to encourage innovation,to maintain orderly competition in the market,to balance the interests of all parties should adhere to the basic position.It is not advisable to put the vicious events such as "Wei Zesi death" down to the competitive bidding service itself and completely "block" a business model.To improve the law,to strengthen the regulation,and to stipulate that the censorship responsibility of search engine service providers are the suggested ways to deal with such problems. |
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