On The Duty Of Care Of Internet Service Provider

This paper mainly makes an in-depth study of the problems existing in the duty of care of Internet service providers under the safe haven system in China,and puts forward some suggestions for improving the duty of care of Internet service providers in China by combining with the in-depth analysis of foreign legislation and justice.The safe harbor rule is a rule to determine whether the network service provider has undertaken the duty of care and whether it can be exempted from liability for the infringement of its users.To judge whether the network service provider can enter the safe harbor,we should determine whether it meets the "notice counter notice rule","red flag rule" and "necessary measures to stop infringement rule".First of all,for the legal effect of the disqualification of "notice" in "notice counter notice rules",we should specifically identify the duty of care of network service providers from "the contact information provided by the obligee,the proof of right and good faith commitment","the evidence description of the infringing content" and "the location of the infringing content",rather than strictly abide by the "formal elements".Secondly,the specific identification standard of "should know" in the "red flag rule" should be "specific know",which requires the network service provider to know the specific infringement content,rather than just the "general know" of the infringement content;on the other hand,it should also be a combination of subjective and objective factors to determine whether the network service provider "should know",so as to avoid the excessive duty of care of network service providers.Finally,the specific identification of "rules of necessary measures to stop infringement" can be judged from the perspective of "timeliness" and "effectiveness".On the one hand,from the perspective of "timeliness",only when the network service provider takes measures immediately after receiving the notice,can it enter the safe haven;For the defective "notice",as long as there is no defect in the "contact information,proof of right and good faith commitment provided by the obligee" in the notice,the network service provider should also take immediate measures instead of indifference.In the "red flag rule",once the network service provider meets the requirement of "should know",it should take necessary measures immediately,otherwise it should bear the corresponding legal responsibility.From the perspective of "effectiveness",we should distinguish the duty of care of network service providers from the perspective of typology.Different types of network service providers should take different measures,but to meet the requirements of "effectiveness",such as disconnecting services,deleting infringing information,shielding disconnection,etc.