A Research On The Duty Of Care Of Internet Service Providers

The indirect infringement system of Internet service providers is an important legal rule affecting network order.The fault in the indirect infringement of Internet service providers includes intent and negligence.For the determination of fault,this paper argues that we should judge it by the objective duty of care.The proposed duty of care not only has profound theoretical basis but also conforms to the normative system of tort liability law in China.When introducing the basic theory of the duty of care of network service providers,first of all,the network service providers are divided into broad and narrow sense.Secondly,the duty of care is analyzed.Although the legal traditions under different legislative systems are different in meaning,the duty of care is expounded in tort law.In the identification of indirect infringement in the field of network,the duty of care plays an important role in the identification of negligence.In theory,the duty of care of network service providers conforms to the legal requirements of trust relationship theory,risk control theory,interest balance theory and social total cost theory,thus ensuring the rationality of the duty of care.In nature,it is found that the duty of care of ISPs conforms to the basic nature of security obligations,which can be understood as an extension of their network environment.The duty of notification deletion is the identification of negligence which is different from the duty of care.As for the system framework,the indirect infringement of copyright conforms to the traditional infringement system of our country,and can be determined from the angle of the constitution of infringement liability by the imputation rule.However,by transplanting the exemption rules of the Digital Millennium Act of the United States,the Regulations on the Protection of the Right of Information Network Dissemination(hereinafter referred to as the Regulations)have created a situation in which both the exemption rules and the imputation rules coexist in China.The exemption path applied on the basis of the strict liability principle in the United States has its specific historical origin and institutional guarantee,which is not compatible with the fault liability principle of copyright in China and the traditional infringement path.As to how to balance the relationship between the exemption rule and the imputation rule,this paper holds that the articles established according to the exemption rule should be brought into the orbit of the general tort constitution with the duty of care as the link.Returning the copyright indirect infringement problem to the traditional infringement system in China can not only make up for the disconnection between the rules of safe haven and the legal tradition of our country,but also adapt to the new indirect infringement problems emerging in the network environment,so as to maintain a stable network order.The determination of duty of care includes two aspects:the establishment of duty of care and the violation of duty of care.Only when the network service provider fails to fulfill the corresponding duty of care to cause damage to the legitimate rights and interests of others,does it constitute a breach of the duty of care and need to bear tort liability.Predictability,proximity and fairness should be taken as the approach to the duty of care,and reasonable person should be taken as the criterion to judge.The possibility of foresight is the premise of the duty of care.The proximity further solves the identity problem of the obligor.Fairness is a supplementary judgment from the economic point of view.The three determine the scope of the duty of care.According to the objective and reasonable person criterion,it is decided whether the duty of care has been violated by judging whether the corresponding degree of obligation has been fulfilled or not.The principle of judgment in theory can provide a unified standard for different forms of duty of care in judicial practice.In practice,the duty of care of Internet service providers is sliding according to the specific situation in the case,and the law of our country is only a conceptual provision and a scattered and open enumeration.Therefore,according to the standard of duty of care,through case analysis,this paper summarizes the different influencing factors in practice.The indirect infringement of copyright by ISPs is mainly judged by the service types of ISPs,the originality,popularity of the disseminators,the degree of copyright identification,the specialization and recommendation of websites,and the direct profit factors.Under the influence of different factors,the duty of care with different degrees is divided into general and higher duty of care.For general duty of care,we only need to fulfill the procedural obligation of unimpeded notification channels.A higher duty of care should bear the obligation to examine specific contents.From the necessity and moderation of duty of care,this paper discusses the rationality of the content of duty of care.Only in this way can we realize the accountability of omission and the guidance of network service providers to maintain network security.This paper aims at the degree and specific content of the duty of care of different network service providers,summarizes and typifies it in practice,and tries to construct a reasonable and complete system of duty of care.On the basis of defining the boundaries of the duty of care of different network service providers,it clarifies the attention that the service providers need to bear.Types of obligations.Typological analysis is closer to the changes and complexity of social life than the concept,and has judicial stability relative to scattered enumeration.The setting standard and violating standard of the duty of care of network service providers are not invariable.For a developing system,the duty of care is undoubtedly the best choice,which is guided by the standard of reasonable person,analyzed by the rules of tort constitution,and typified as a framework.