| Unlike the real world,the online world is a huge,open virtual space.Due to the low threshold of network access and strong concealment,in most cases,it is not necessary to indicate the user’s true identity,nor to possess advanced theoretical knowledge and operation skills.Network users only need a networked electronic device to implement it.Infringement.At the same time,compared with traditional media,the Internet is an emerging industry,and its rapidity in transmitting information and the extensive coverage area are also a major feature.Because of this,the adverse consequences of online infringement can easily spread all over the world,which may cause huge psychological damage and economic loss to the infringed.In addition to the easy operation and rapid dissemination of network infringement,it involves a large number of responsible subjects.Among them,the network service provider,as the subject of special network relations,often involves infringement in practice.It is necessary to study its tort liability.At present,there are few legal provisions on liability for online infringement,which is slightly weak,and it is not enough to deal with more and more online infringement cases.With regard to Article 36 of the Law of the People’s Republic of China on Tort Liability,paragraph 1 sets out the general principle of liability for network service providers,namely the principle of liability for fault.Paragraph 2 provides the "notification-deletion" rule,commonly known as the "safe harbor rule".Although it is theoretically related to the international community and has the same heritage,the form and content of the "notification" includes counter-notification content,guarantee and commitment statement,and false notification No liability for defects or notices is provided.Controversy over whether the counter-notification system should be written into the civil code is huge.Some people think that the counter-notification system seriously damages the legal rights of right holders,hinders the development of information technology,promotes a gray industrial chain,and causes a waste of judicial resources.The meaning of "just in time" is a reasonable period of time.Although there are two judicial interpretations,the scope of application is narrow and the content is limited.For network service providers,how to quickly review within a reasonable time,it also puts forward higher requirements.Paragraph 3 provides for the "knowledge" of network service providers,the "red flag rules".The Civil Law Code of the People’s Republic of China’s Tort Liability(Draft)revised "know" to "know or should know",which is theoretically in line with mainstream academic views and legislative purposes,but presents greater challenges in proof.The subjective fault of a network service provider directly affects its determination of tort liability,and its importance is self-evident."The Supreme People’s Court’s Provisions on Several Issues in the Application of Law in the Trial of Civil Disputes Infringing the Right of Information Network Dissemination" stipulates the "knowledge" criterion,and "Several Issues in the Supreme People’s Court’s Application of Law in the Trial of Civil Disputes Involving the Use of Information Networks to Injure Personal Rights The "Provisions" stipulates the criteria for "knowing".Although there is not much difference in the content of the judgement,there is no specific analysis of the influencing factors.For example,distinguishing the type of object of infringement and the type of network service provider.In practice,judges still enjoy greater discretion.In terms of network tort liability,the existing tort liability forms and methods of bearing are relatively simple.Article 36,paragraphs 2 and 3 of the "Law of the People’s Republic of China on Tort Liability" stipulates the joint and several liability of network service providers,but it is not clear whether the joint and several liability is the standard joint or several joint liability.Based on the existing legal regulations and related theoretical theories,combined with the current status of judicial practice,this article believes that the recognition criteria of "notice","timely" and "know" should increase the liability for valid notices,guarantee statements,and wrong notices,defect notices,etc.Fundamental contents.Regarding the counter-notification system,although the system is slightly cumbersome and may seem to be a waste of judicial resources,it can better protect the legal rights of all parties and demonstrate the fairness and justice of the law.Clarify the network service provider as the main body for handling network infringement disputes,and apply the ODR dispute resolution mechanism to practice as one of the basis for judging whether it is "timely".By distinguishing between different types of infringement objects and types of network service providers,whether to use an automatic filtering and identification system and determine whether they "know or should know".In the form of tort liability,the indirect tort theory should be applied to the tort liability of the network service provider,and the tort liability form should not be real joint and several liability.On the one hand,the network service provider did not directly implement the infringement,and on the other hand,the network service it provided objectively facilitated the dissemination and expansion of the infringement information,so indirect infringement is more suitable for the network service provider.The standard joint liability is characterized by the difficulty of dividing the joint tort liability of torts.In the case of network infringement disputes,the magnitude of the tort liability between the network service provider and the network user is obviously not equal.It can be determined that the network service provider is responsible Shares must be secondary,not primary.Therefore,its tort liability form should not be joint liability.On this basis,the minimum standards for online infringement damage compensation should be established,and the method for calculating the compensation amount should be clearly defined.At the same time,we should pay attention to non-money relief methods such as apology and apology.It must be pointed out that if the network service provider and the network user have an interesting subjective contact or form an obvious division of labor and cooperation objectively,the provisions of Article 8 of the Tort Liability Law shall apply,rather than the provisions of Article 36,paragraphs 2 and 3.In addition,the indirect tort liability that the network service provider fails to take necessary measures in time to cause damage shall be stipulated in civil law as not being jointly and severally liable.That is to say,in the case of network infringement,first determine whether the network service provider is illegal or at fault,then determine whether it constitutes indirect infringement of instigation or help,and then analyze whether it has a connection with the intent of infringement of the network user.Or if there is a joint infringement,the application of Article 8 of the Tort Liability Law shall apply and shall be dealt with according to joint and several liability.If there is no joint infringement,the assistance of infringement shall apply.Article 36,paragraphs 2 and 3 of the Tort Liability Law shall apply.deal with.Nowadays,the network technology is more developed and the liability for infringement is more diverse.Clarifying the principle of infringement liability of network service providers and digging into the deep meaning behind the text of legal provisions will help to better balance the interests of all parties,better connect with judicial practice and play a role,and effectively quell and resolve theoretical disputes. |
