A Study On The Security Assurance Obligations Of Network Service Providers

"Network service providers" and "safety guarantee obligation" has been as the concept of two system,strictly distinguish,but the network service providers also have a "open and participate in the social intercourse" and "at risk" to others rights and characteristics,and with the rapid development of society,the network the potential danger of space appears more and more,these risks emerged not just in the field of reputation and spiritual rights,even to cause damage to life and health.The original intention of setting the security obligation is to solve the social risks which constantly appear and to provide the legal basis for the identification of the actor's omission infringement.In view of this,the author suggests that the security guarantee obligation should be extended to the network space,and the network service provider should assume the security guarantee obligation.Apart from the introduction and conclusion,this paper is divided into four parts.Firstly,the security obligations of network service providers are empirically analyzed.This paper classifies the distribution of cases and summarizes the positions of judges.This kind of cases,as a new type of cases,are few in number and judges have different opinions,forming two different judgment positions: "security obligation cannot be applied in network space" and "security obligation can be applied in network space".There are three restraining factors for the applicable security guarantee obligation in cyberspace: the limitation of existing technical conditions,the uncertainty of service objects,and the diversification trend of network infringement.Then the security obligation of network service provider is analyzed theoretically.The legal basis of ISP security obligation mainly includes: risk control theory,trust relationship theory,profit compensation theory,social total cost saving theory;It is justified to impose security obligations on ISP.First,it will not hinder the development of the Internet,but will promote the development and prosperity of the Internet industry.Second,it will not hinder the ISP's self-interest.Third,security obligations do not impede freedom of expression.On this basis,the content and identification of network service provider's security guarantee obligation are discussed.On the basis of the traditional security obligation,this obligation is divided into prevention obligation,elimination obligation and remedy obligation according to the characteristics of cyberspace.Based on the traditional security obligation theory and the characteristics of network space,the identification standards of the obligation are divided into legal standards,industry standards,general standards and specific standards.Finally,the author discusses the tort liability of network service provider for breach of security guarantee obligation from four aspects: imputation principle,liability constitution,liability form and reason of exemption.In determining the principle of imputability,the principle of presumption of fault is applied to the network service provider's violation of security obligation.Different from physical space,the infringement of right holders in cyberspace is mostly mental rights and virtual property rights,and the concealment and anonymity of network participants make it more difficult to determine the specific infringer.The scope of compensation for damage caused by breach of security obligations in cyberspace should include the loss of inherent property and the increased part of the damage;In the determination of the liability form,the ISP should assume the "special supplementary liability" which is higher than the general supplementary liability.The reasons for the exemption of the obligation of cyberspace security mainly include network force majeure and the cause of the victim.