The Monitoring Obligation Of Search Engines In Pay-per-click

Pay-per-click,also known as bidding ranking,is a new network technology.Due to the lag of law,the legal nature of pay-per-click swims outside the current law.Pay-per-click increases the possibility of tort,and in the absence of legal supervision,search engines one-sided pursuit of commercial interests,as for network users,they lack the ability to screen information,so there are a variety of factors together leading to a large number of false information which flooding the network phenomenon and infringing the personality rights and property rights of network users.However the courts apply the general search engines' monitoring obligation standard to the search engines in pay-per-click,neglecting the defect and the danger of the pay-per-click mode itself,so the lack of monitoring obligation leads to the infringement behavior intensifies.Therefore,this paper intends to analyze the legal nature of the pay-per-click and the necessity of the search engines' monitoring obligation,in order to construct a reasonable search engines' monitoring obligation.The main content is divided into the following four sections:The first part mainly determines the legal nature of the pay-per-click.On the basis of combing three different viewpoints in legislation and judicial practice at home and abroad,analyzing the differences between pay-per-click and traditional advertising in display mode,marketing effect,information control ability and charging mode,in order to conclude that pay-per-click does not belong to the category of commercial advertisement.The second part relies on the conclusion that pay-per-click belongs to information search service,then analyzes the tort liability and monitoring obligation of the search engine services.By comparing the judicial jurisprudence at home and abroad,it is concluded that the core of the search engines' tort liability lies in determining whether its monitoring obligation exists.The similarity between China and foreign countries is that,while states negate the universal existence of the obligation to monitor,they also overcome the adverse effects of the rigidity of the rules of safe harbor that in some special cases the search engines should fulfill certain obligations of monitoring.The different views are whether the neutrality of the search engines,the reimbursable nature of the pay-per-click and the keywords popularity have impact on the monitoring obligation.The third part focuses on the theory of search engines' monitoring obligation,which demonstrates the necessity of its existence.Firstly,explaining the connotation of the red flagtest,which shows that the red flag test is different from the standard of knowledge of should know in our tort law,so the equivalent of the two things eliminating the possibility of increasing the adequate monitoring obligation of search engines in China.Secondly,it distinguishes the natural information search mode and the pay-per-click mode,points out the existence of manual intervention technology in pay-per-click,and the technical use behavior of the search engines is not neutral,which is necessary for them to bear the obligation of monitoring.Thirdly,revealing the antecedent behavior such as introducing pay-per-click to network users bringing them into danger,which should bear the monitoring obligation to prevent damage.Finally,it is proved that the search engines bear the lowest preventive cost of the monitoring obligation.The fourth part mainly constructs the rules of monitoring obligation of the search engines from five aspects according to the characteristics of pay-per-click.Taking the promotional items on the search results page as the scope of the monitoring and excluding the content of the page after the link jump;introducing the feasibility of the technical monitoring and the classification of the manual monitoring,combining the manual monitoring with technical monitoring;requiring the search engines with the skills and prudential standards that the general rational practitioner should possess,with the help of simple logical examination,it is necessary to identify the authenticity of information through the naked eye without meeting the standards of the identification organ,and the obligation of continuous attention to monitoring repeat tort within a reasonable period of time;the search engines have clearly indicating the existence of the paid search information to the network user which can be the cause of relieving its monitoring obligation.