Research On Erroneous Notice Responsibility Under The Safe Harbor Rules

Safe harbor rules refer to the provision of necessary measures such as deletion,blocking,and disconnection of links by internet service providers in a timely manner after receiving notice from right holder regarding internet tort,in order to obtain exemption.Erroneous notice triggers the operation of safe harbor rules in an illegal manner,causing damages to internet users or internet service providers.Their large number,diverse types,and extremely low costs pose a serious challenge to China’s internet tort response mechanism.Paragraph 3 of Article 1195 of the Civil Code is a provision of erroneous notice liability,but it cannot effectively regulate erroneous notice.Therefore,it’s necessary to refine the understanding of the provision of erroneous notice liability,conduct research on erroneous notice liability,cover the concept itself,criterion of liability,and compensation for damages,in order to effectively regulate erroneous notice.This article mainly includes the following five parts:The first part explores the legislative reasons for the provision of erroneous notice liability in China,and summarizes its development in recent years.It points out that there are issues in the judicial application process of this provision,such as the inability to determine the concept itself,differences in the criterion of liability,and difficulty in quantifying damages.The second part clarifies the concept of erroneous notice,stating that erroneous notice in the context of the Civil Code refers to the act of the right holder causing damages to internet users or internet service providers through the notice due to fault.At the same time,there are differences in the form and substance of erroneous notice in the context of the Civil Code,invalid notice,defective notice,and malicious notice.The third part analyzes the criterion of liability for erroneous notice,and the criterion of no fault liability cannot be adopted for erroneous notice liability.The reason is that the objective criterion of liability for erroneous notice is based on the illegality and damage consequences of the behavior rather than danger or control,and the law does not explicitly stipulate that erroneous notice liability is no fault liability.The criterion of fault liability should be adopted for the responsibility of erroneous notice,on the grounds that the subjective criterion of responsibility for the act of erroneous notice is fault and is in line with the tort liability system of the Civil Code.The fourth part discusses the issue of compensation for damages caused by erroneous notice liability.The allocation of burden of proof and the calculation criteria for damages vary depending on the type of object and the circumstances of the error.The general right applies the inverted burden of proof,while the special right applies the inverted burden of proof.The principle of filling in is generally adopted for erroneous circumstances,and the principle of punitive is adopted for serious erroneous circumstances.The fifth part provides an interpretation plan for Paragraph 3 of Article 1195 of the Civil Code,stating that the first sentence of this provision should be limited in interpretation to clarify the criterion of fault liability for erroneous notice,and the second sentence should be systematically interpreted to clarify that the resulting clause can point to good faith exemption clauses,etc.,with the value pursuit goals of honesty and credibility,prohibition of abuse of rights,and equity of interests.