Research On The Legal Application Of "Notice And Take Down" Rule

The Internet era is constantly changing,and the convenience and efficiency of information network communication make the role of "notice and take down" rule more important.However,the application of new forms of technologies has become more and more common,which has brought great challenges to the application of original " notice and take down " rule.What is most directly related to technological development is the identification of "Subject Elements" applicable to the " notice and take down " rule,that is,the judgment of subject types and the application of laws under the new technological environment;And the identification of "Behavior Elements",that is,whether the scope of necessary measures should be expanded and whether the notification belongs to under the premise of diversification of technical means.The inadaptability of Subject Elements and Behavior Elements has reached a new height in We Chat applet cases and Alibaba Cloud server leasing cases,which has led to extensive and in-depth discussions.Firstly,there is controversy about the characterization and application of the subject.On the one hand,the development of technology leads to the gradual mode of technology boundary,and the control ability of many network service providers on content is greatly weakened,while the continuous innovation of business model gives birth to new types of network services,which make it difficult to accurately define their nature.On the other hand,there is no consensus on the understanding of "Internet service providers" such as the Civil Code,which types of Internet service providers can apply to the provisions of the special article on Internet in the Civil Code and the specific application of the provisions.Secondly,there is a new understanding of the Behavior Elements that the " notice and take down" rule allows network service providers to be exempted from liability.Whether it is allowed to break through the original "take down" and its equivalent necessary measures and expand the scope of necessary measures is still under discussion.Furthermore,if we need to expand the category of Behavior Elements,how to define and divide them reasonably is worth further discussion.Based on this,we should further clarify the "Subject Elements" and "Behavior Elements" in the "notice and take down" rule,enrich the connotation of the rule,and make it adapt to the new network technology environment of rapid technology development.When judging the "main elements" of the "notice and take down" rule,we should pay attention to three common misunderstandings.First,pay attention to the difference between technical classification and legal classification,because technical classification is not necessarily consistent with legal classification;Second,we need to pay attention to the difference between technology neutrality and business model,and the application of technology neutrality needs to be considered in combination with business model factors;Third,we should pay attention to the distinction between technical impossibility and legal inappropriateness.Specific prohibitive provisions,such as not requiring take down,disconnection and shielding,are not based on technical impossibility,but are more concerned with legal inappropriateness.Only by accurately grasping the above three factors can we accurately and completely grasp the main elements of "notice and take down" and make a more appropriate judgment on whether the "notice and take down" rule can be applied.It is suggested that when judging the type of the subject,we should take legal classification as the core and technology and business model as the assistance to make comprehensive judgment.Understanding the "Behavior Elements" of the "notice and take down" rule should be viewed with a developmental attitude,which is related to the above-mentioned judgment of Subject Element.The judgment of Behavior Elements is an extremely important factor for the right holder and the network service subject.For the right holder,the Behavioral Elements are the basis for claiming whether the platform is infringing or not,and for the Internet service providers,the behavioral elements are the basis for claiming exemption.The right holder hopes that the severity of the "necessary measures" will be as severe as possible,while the Internet service provider hopes that the threshold of the "necessary measures" will be as low as possible,so that it can reduce the burden.Therefore,the definition of "necessary measures" is a measure of the interests of multiple subjects,and it also needs to combine the current technical background with the needs of industrial development.It is suggested that "take and down" should be developed to "necessary measures",and the judgment of "necessity" should follow the principle of proportionality,which is suitable for the type of subject and the possibility of infringement of preliminary evidence.