Liability Of Network Service Providers

Cyberspace is illegally out of space.While the Internet has profoundly affected and changed people's lives,it has also created many legal problems.As the network service provider connecting the network terminal users,the cases of infringement of other person's personal right,property right and copyright have increased continuously.The study of its tort liability has important practical significance.This paper is divided into three chapters to analyze the above problems: the first section of the first chapter mainly elaborates the concept of tort and the characteristics of the network service provider,the domestic and foreign scholars,legal provisions,from ICP and ISP's way to give a general description of the form of liability.The second section through the comparative law and legal analysis method to get the conclusion of our country network tort liability principle.The third section focuses on the analysis of network infringement of the four elements:(1)the violation of duty belongs to the subjective fault liability;(2)the object of infringement of virtual property attributes of academic differences,including the real right of creditor's right;(3)to help tort reasons and constitute a joint tort liability;(4)the spirit of damages is a commonly used network infringement remedy.The fourth section analyzes the individual tort liability and joint tort liability,and concludes that the Internet service provider's infringement help infringement is not really joint and several liability.A brief description of the future challenges of non joint liability in the context of artificial intelligence technology and block chain technology.Thesecond chapter is divided into four sections.First,it expounds the background and development of the safe haven rules,and applies the network infringement field.From the view of "safe harbor",the principle of technical neutrality and the "red flag test",this paper analyzes the similarities and differences of the legal system of network infringement in china.Two is the analysis of Enforcement of Article 36 of Tort Law.Including(1)“Notice – remove” is the imputation conditions;notification requirements;(2)effective notice of the conditions for the existence of differences in theory and practice;(3)establish notification guarantee and counter notification system;(4)"timely" is the time should be in the range of people can tolerate.The three is including the analysis of connotations of "know" :(1)"know" including "should be known + known";(2)"should be known" includes "constructive intent" also includes "violation obligation of care";(3)the presumption of intentional use of subjective presumption rules;(4)analysis of "know" and " violation obligation of care" is the two proof way of subjective fault.Four is the analysis of "necessary measures" which belongs to the afterwards supervision of obligation care.The third chapter puts forward five suggestions,one is to improve legislation;two is to clarify the main responsibility of the service provider boundary;three is to introduce the technical obligation of network service providers;four is the actual infringer's liability;five is the relationship between the individual freedom of expression and civil rights in judicial practice should be balanced and easily overlooked.Referring to the US and EU,the laws on network infringement in China are fragmented and have defects in their systematicness and integrity.There are many problems in the merge of foreign advanced legislative ideas and local judicial practice.Based on the actual domestic judicial network environment,through the detailed interpretation of the domestic laws and regulations,this paper sorts out the tort liability system of network service providers.Research methods:(1)document analysis: collection and analysis of legal documents of the US,the EU and other countries of the,to explore the source of China's network tort theory;(2)Comparative Analysis: comparison between the US and China's different imputation principle,reasonable demonstration of China'sprinciple of fault liability;comparison of foreign port regulation and the principle of technological neutrality and China's “notice – remove” of China's Internet service provider tort laws and regulations,put forward concrete measures and suggestions.