Study On The Tort Liability Of The Internet Service Provider

The greatest invention of mankind in the 20 th century is the internet.It has promoted the progress of social production and life and the transformation of information dissemination,and has exerted a huge impact on the world economy,politics,culture and society.While the Internet has brought convenience to our life,it also has brought many legal problems.More and more Internet users infringe the rights of reputation,privacy and patent of others by using the Internet.In response to the problem of network infringement,although the Law and related judicial interpretations have been stipulated,the relevant legislative provisions are too general.There is no unified formation in theory,leading to the appearance of phenomenon of different judgments in the same case.In order to standardize the application of legislation and clarify the tort liability of network service providers,it is necessary to use the method of legal interpretation to interpret and refine the legislation.Firstly,this paper clarifies the relevant theories of network service providers.As a major player in network activities,network service providers play an important role in cyberspace.Unlike general infringers,Network service providers have different classifications based on different classification criteria.According to the network service provider edits or modifies the information content,the network service providers are divided into two types: network content service providers and network technology service providers.In addition,There are also two ways for network service providers to infringe,namely direct infringement and indirect infringement.Secondly,this paper interprets the“notification clause”to clarify the tort liability under the“notification clause”.The provisions of the notice are general for the tort liability of the network service provider.The specific issues such as the issuer of the "notice",the form and content of the "notice",and the judgment of "timely" need to be interpreted using an interpretative approach.Although article 36 of the Tort Liability Law does not explicitly stipulate the counter-notification rights of network users,anti-notification rules exist logically,and newly published Civil Code(Draft)clearly stipulates the network user who forwarded the notification has the right to submit a statement to the network service provider.Thirdly,this paper explains the legal meaning and identification criteria of“knowing”in the“Knowing Terms”and clarifies the tort liability under the“Knowthe Terms”."Knowing" includes "knowing" and "should know",in other words,when the network service provider knows or should know that the infringement exists.,it fails to fulfill its legal obligations,it shall bear joint liability.As far as the scope of responsibility is concerned,the legislation is not defined.The court must make a reasonable judgment according to the specific circumstances of the case,with reference to the economic benefits obtained by the network service provider and the losses suffered by the infringed.Finally,this paper expounds the joint liability of the network service provider.Other than criminal joint infringement,civil joint infringement does not require that joint tortfeasors have the subjective meaning communication.The network service provider shall bear joint liability.After assumed the joint liability,the network service provider will have the right of recovery.However,it is difficult to quickly and accurately identify the true identity of the network user who commits the infringement in judicial practice.It is necessary to implement the network real-name system in the cyberspace to maximize the balance between the interests of the network service providers and the infringers,and to achieve the legislative purpose of curbing illegality.