Research On The Duty Of Care Of Internet Service Providers

With the rapid development of network technology,the phenomenon of Internet infringement has become more and more diverse.Internet service providers are supposed to be neutral third parties,but indirect infringement through inducement,assistance and other means is increasingly common.By introducing the duty of care in the common law system to regulate the indirect infringement of network service providers,it can not only better protect the legitimate rights and interests of the right holders,but also regulate the order of the Internet industry.By studying the requirements,scope and degree of the duty of care of Internet service providers,this paper attempts to propose the content of the duty of care of Internet service providers that is suitable for the tort liability system in China.The duty of care is an important factor to judge the fault elements in the indirect tort liability of Internet service providers,so the meaning of "know rule" must be clear.The existing laws and regulations in the judgment of fault elements of the use of legislative language is very confused,it is urgent to unify the relevant expressions.The author believes that under the mature theoretical and practical conditions,it is necessary to make clear that "knowing" includes two subjective states: "knowing" and "should know",discard the expression of "reasonable reason to know" and "obvious perception",and define the scope of "knowing rules".On the determination of "knowing" and "ought to know",the existing judicial interpretation is not clear,which leads to the confusion of the determination of "knowing" and "ought to know" in practice.It should be clear with "notice-delete" rules as of the only rule of "knowing",at the same time,adhere to the "red flag standard" for "should know that by sticking to the general provisions of the existing + open list of legislative mode,avoid the"substantial "behavior at the same time as the phenomenon of" knowing "and"should know ".On the issue of degree duty of care of network service providers,our country has established two kinds of reasonable duty of care(general duty of care)and higher duty of care through judicial practice and judicial interpretation.The duty of reasonable care is commonly found in the "notice--deletion" rule.In judicial interpretation,"higher duty of care" is rarely stipulated directly,but is more defined by other general expressions.Therefore,it is necessary to distinguish the applicable situations between the two in practice.The author believes that the application of "higher duty of care" must be based on clear provisions,which should be applied cautiously outside the circumstances prescribed by law.In judicial practice,the determination of the higher duty of care is mainly based on the comprehensive judgment of whether there is a substantial contact behavior and whether there is direct profit.Aiming at the identification of the duty of care of Internet service providers,this paper,by means of case analysis,tries to solve the problems related to the meaning,specific content and degree of the duty of care,so as to clarify the requirements of the duty of care of Internet service providers and improve the existing system of the duty of care in a suggested way.