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Research On The Rules Of Determining Indirect Tort Liability Of Internet Service Providers

Posted on:2020-01-14Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiuFull Text:PDF
GTID:2416330575960653Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As one of the greatest inventions in the 20 th century,the Internet poses unprecedented challenges to the existing civil law system.Therefore,it is a common trend in the world to legislate the tort liability of Internet service providers,and the laws in Europe and America have been very mature.China also recognizes the importance of this issue and gradually legislates to regulate it.However,due to the late start of China's network industry and the lack of theoretical accumulation and judicial practice of the corresponding legal system,although through the transplantation of the Millennium Digital Copyright Law of the United States,we has established a tort liability system for network service providers,it is difficult to say we have considered some issues thoroughly.There are some problems and room for improvement in the the rules of determining the tort liability of network service providers in China's current law include path selection,responsibility principle and standard of subjective fault determination,the rule of notice and takedown and the obligation of post-audit,which have become the shackles of the development of the Internet and can't keep a good balance between the development of the network industry,the protection of rights and the freedom of speech.Especially,the system of "joint infringement" which has been adopted in our country has shortcomings in identifying the infringement of network service providers.Therefore,considering the problems existing in the current liability determination rules in our country,the author tries to introduce and discuss the mature rules of tort liability determination for network service providers in the advanced foreign legislation such as the Millennium Digital Copyright Law of the United States,the EU Directive on Electronic Commerce and the German Telecommunication Media Law,especially the indirect tort system adopted by DMCA of the United States and its responsibility principle,the standard of red flag and the rule of notice and takedown are emphatically discussed.Different from the previous "joint tort" theory,this paper tries to use indirect tort system as the way to identify the liability of network service providers,constructs theindirect tort liability system of network service providers in China,and divides it into two types: informed and help infringement and directly profits gain infringement,and elaborates on their respective constituent elements,responsibility principles and difficulties in the identification of liability in detail.On this basis,this paper puts forward some suggestions to improve the rules of indirect tort liability determination of network service providers in China.Firstly,in terms of the principle of responsibility,we should apply the unified principle of imputation to the indirect tort of intellectual property rights and other civil rights,that is,the responsibility principle of "taking fault liability as the main factor and no-fault liability as the supplement".Secondly,in the determination of subjective fault,we should clarify the "red flag"criterion of "knowing" determination,that is,to stipulate the subjective and objective elements of "knowing specific facts or situations + obvious infringement" in judicial interpretation,and to classify the consideration factors in current judicial interpretation according to the division method of subjective and objective factors so as to guide the judges' identification thoughts more clearly.Thirdly,in the aspect of perfecting the "notification-removal" rule,the first thing is to add the"anti-notification" rule in the field of indirect infringement of personality rights.The second thing is to improve the details of the "notification" and "anti-notification" rule,modify the legal consequences of the "counter-notification" received by the network service providers,improve the requirements of qualified "notification" and"counter-notification",and clarify the elements that should be possessed by the"notification" and "counter-notification and the substantive compliance of the form requirement of notification and the legal consequences of the unqualified notification.Fourthly,we should learn from the German system of "liability for obstruction" and establish the "post-audit obligation" of network service providers.In addition to the aforementioned contents,this paper also studies the classification of network services applicable to liability harbor and the legal basis for network service providers to bear indirect tort liability on the basis of reviewing domestic and foreign legislation and theory.
Keywords/Search Tags:Internet Service Provider, Indirect Infringement, Substitution Liability, Red Flag Standard, Notification Removal Rule
PDF Full Text Request
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