Analysis About Property Compensation Case Of "Zhang Wenqing V. Baidu Inc."

In the Administrative Provisions on Internet Information Search Services,providers of Internet information search services are official names for a series of search service providers such as Baidu,Sogou,and 360.For the convenience of description,this article uses the abbreviation "search service providers".In recent years,search service providers have been frequently sued for false advertisements,and “Zhang Wenqing v.Baidu Inc.” is one of them.The case caused controversy in the application of the Advertising Law and the Tort Liability Law.The court chose to use the Tort Liability Law for trial.This is regular practice.And the main reason is that the provisions of the Advertising Law lag behind the development of Internet advertising.The case also reflects some more controversial points in the current judiciary.This article starts from the control ability which search service providers have,through the interpretation of relevant laws in the field of advertising and online infringement,clarifies the focus issues,and pays attention to the obligations and responsibilities of different laws.In light of the actual situation,the law should be applied appropriately to balance the interests of consumers and search providers.Under the premise of “paid search service is online advertising”,this paper analyzes relevant laws in the field of advertising and online infringement,and puts forward some opinions and suggestions on some controversial issues.There are three parts.The first chapter is the introduction of the case,the trial situation and the controversial points.The second chapter is the legal analysis of the case.It mainly focuses on whether Baidu has the obligation of prior censorship,how the rule of “Notice-Removal” can be used properly,whether Baidu has fulfilled its reasonable obligation of care,and whether the Advertising Law can be applied to this case.Moreover,I present my own views and make a simple comment on the trial of the case.On the basis of the second chapter,the third chapter studies related issues further,including the border of the obligation of prior censorship,the application of the principle of liability without fault in the special field,the standard of the obligation of care,and the determination of the false advertising infringement liability.Based on the analysis of the second chapter and the third chapter,this paper believes that the Advertising Law has certain applicable space in the judgment of false advertising infringement liability which search service providers involve in.In the field of advertising law,this paper delineates the border of AdWords,and clarifies that search service providers are only the publishers of front-end advertisements,and tries to give a reasonable range of the obligation of prior censorship.Also,the principle of liability without fault is not suitable for the search service providers.In the field of tort law,this paper believes that the principle of liability for fault can apply to search service providers,and reflects on the rational use of the rule of "Notice-Removal" and the reasonable standard of the obligation of care.Finally,in the judgment of the responsibility of the search service provider for false advertising infringement,this paper compares the application of the Advertising Law and the Tort Liability Law,and considers that the Advertising Law has convenience in the rule of “advance payment” and puts forward an available route in the judgment.