The continuous development of Internet economy has formed a digital economy era with data as the center and platform as the main organization form.The compliance and efficient dissemination of network content has always been the core issue of Internet rule of law.The continuous development of short video platforms has brought difficulties in determining the indirect tort liability of short video platforms.Whether a platform constitutes an aid to infringement needs to consider its subjective fault.How to judge the subjective fault is a fault imputation system with "duty of care" as the core.The differences between short video platforms and other platforms will also lead to their special duty of care.In particular,short video platforms are dominated by user-created content,and there are a large number of second-creation videos and user-created videos that are difficult to determine whether infringement occurs.Moreover,short video platforms use algorithms recommendation and other technologies to widely intervene and spread,which objectively increases the consequences of infringement.In judicial practice,courts usually judge faults based on whether platforms fulfill their duty of care.Therefore,duty of care of short video platforms plays a key role in determining tort liability.Based on 50 judicial cases,this paper makes a quantitative and qualitative analysis,and summarizes the outstanding problems existing in the determination of duty of care on short video platforms,which mainly lies in the unclear content of duty of care and inconsistent standards of judgment.The generally accepted duty of care includes the obligation of reminding in advance,the obligation of deleting notices,the obligation of forwarding notices,etc.In recent years,there is a great dispute over whether to take tort prevention measures,whether to have an active review obligation,as well as the abuse of a high duty of care.Among them,the subdivided problems include the identification difference of effective notice,whether to take timely identification of measures,whether the short video platform has the review obligation,the lack of systematic construction of the high duty of care rules of short video platform,the lack of relevant criteria,and the too scattered and chaotic influencing factors.Especially with the rapid development of Internet technology,the emergence of personalized algorithm recommendation technology and filtering technology has led to the confusion of the overall identification standard of duty of care for short video platforms,different understanding of the duty of care for short video platforms under specific circumstances,and the determination of the standard of duty of care is not required.Therefore,on the basis of summarizing the existing legislation and judicial judgment,the duty of care of short video platforms is sorted out and summarized,and the following conclusions are drawn: it is necessary to make detailed provisions on the notice-counter-notice rule: set the substantive requirements of notice according to different types of rights infringement,and solve the problem of timeliness of taking measures according to the minimum period plus the maximum period;Set the copyright filtering obligations of short video platforms,and make it clear that short video platforms have no general censorship obligations;It classifies the duty of care in a typed way,clarifies the general duty of care and higher duty of care,clarifies the improvement of the rules of higher duty of care,especially the range of influencing factors and the corresponding measures to prevent infringement of higher duty of care,and improves the duty of care system of short video platforms. |