Application Of “Notice And Takedown” Rule To New Types Of Network Services

For new types of network service providers such as applet platforms and cloud server rentals,the “notice and takedown”rule stipulated in Article 36 of the Tort Law should be flexibly understood and applied.Article 36,paragraph 2 of the Tort Law expands the applicable subject to "network service provider",and correspondingly expands the necessary measures flexibly,thereby increasing the flexibility of law application.The network service provider should fall within the scope of the applicable subject of the“notice and takedown”rule.In the course of judicial practice,the essential attribute of the“notice and takedown”rule should be clarified and applied as an exemption clause to avoid excessively tilting the balance of interests towards the rightsholder.The determination of "necessary measures" should be based on the specific conditions of the network service provider,and the interests should be balanced in accordance with the principle of proportionality.In the case,the characteristics of the new type of network service and the needs of industrial development should be combined to properly determine the necessary measures to adapt to the new type of network service.Specifically,measures such as "forward notification","terminate transactions and services" and "disclose information of the infringer" can be flexibly set for new types of network service providers.