On The Notification And Counter Notification Rules Of Network Infringement

With the continuous progress of science and technology,people rely more and more on the Internet.The clothing,food,housing and transportation of life are inseparable from the Internet,a large number of businesses in the Internet to expand territory,B2 C,C2C business model development,blogs,forums and other speech space,but also breed a lot of network infringement problems.However,due to the virtual nature of the Internet,no geographical restrictions and other characteristics,resulting in the identification of the real identity of network users is difficult,tort liability is difficult to investigate.Therefore,the use of the Internet to infringe upon others' personality rights and copyright has occurred frequently.After the infringement,it is difficult for the infringed to recover the responsibility because they can not determine the true identity of the network users,and the legitimate rights and interests can not be guaranteed.In this case,a large number of infringed persons turn to litigation network service providers,which is not to investigate the responsibility of direct infringers,but also increased the burden of network service providers.In order to solve the above problems,China promulgated the "Tort Liability Law" in July 2010,which stipulates in Article 36,paragraph 2: "Network users use network services to carry out infringement,the infringed has the right to notify the network service providers to take necessarymeasures to delete,screen,disconnect links and so on.If the ISP fails to take timely measures after receiving the notification,it shall be jointly and severally liable to the network user for the expansion of the damage.This article clarifies the way to protect the rights of the infringed party by sending notification,and establishes the legal obligation of the network service provider to take corresponding measures to terminate the continuation of the infringement,that is,the "notification rule".Article36 of the Tort Liability Law is a framework clause,which leads to inconsistencies in the determination of the criteria for network infringement,the requirements for qualified notifications,the duty of care of network service providers,the basis and scope of liability assumed,resulting in different judgments in the same case.And after the notification is sent,whether the network users are allowed to send anti-notification to protect their legitimate rights and interests can not be unified.In view of the above problems,the author thinks it is necessary to study specific problems and cases in order to provide some suggestions for solving practical problems.In this paper,the author studies some judicial cases on the basis of,first of all,made clear that the qualified notice should be issued in writing and the subject should be qualified,the content should be specific.Internet service providers should fulfill their reasonable duty of care,and should bear joint and several liability with the infringer for the part of loss enlargement in case of violation of notification rules.Secondly,it analyzes the inadequacy of notification rules,such as not giving users the opportunity to defend,may lead to violations of public freedom of speech.Thirdly,in order to solve the above problems and safeguard the legitimate rights and interests of network users,the anti notification rules are introduced.Finally,the author discusses the characteristics and content of the anti-notification rule,and the necessity of sending the infringed party by anti-notification.The Internet is playing an increasingly important role in people's lives.The stability of the Internet has become an important part of social stability.In recent years,China has promulgated a number of related laws to maintain the order of the Internet.But after the promulgation of the law,its implementation is still a great test.Notification rules have played an important role in restraining network service providers and urging them to maintain network order consciously.Application of notification rulesThe practical problems and the counter notification rules are of great significance for clearing up the chaos of the Internet.