Research On The Duty Of Care Of ISPs Using Algorithmic Recommendations

The algorithmic recommendation mode of personalized information flow pushing for users has become the choice of most network service providers,which,while facilitating users’ access to information,also raises difficult questions about copyright protection and the determination of the duty of care of ISPs.The first algorithmic recommendation case in China and its judgment focus on the impact of the use of algorithmic recommendation on the subjective fault determination standard of the duty of care of ISPs,and the defense of "technology neutrality" can no longer be a reason to exempt ISPs from liability.This suggests that the duty of care of ISPs is no longer a defence for ISPs.This shows that the situation of using algorithmic recommendation in the determination of the duty of care of ISPs has special characteristics,so it is necessary to conduct an in-depth study of this situation and propose a scientific improvement plan.Under China’s traditional legal framework,the "notice and deletion" rule,the "red flag" principle and the "necessary measures" constitute the core content of the duty of care of China’s ISPs.Starting from these three core elements,we analyze the causes of the dilemma brought by the use of algorithmic recommendation to the determination of the duty of care of ISPs and find the crux of the current duty of care in China.In view of the fact that the duty of care of China’s ISPs was initially modeled on the "safe harbor" rule of the United States,which was borrowed by most countries,it is advisable to look at the new scheme of the duty of care of ISPs proposed by foreign countries in the face of the impact of new technologies,and seek useful experience for China to break the dilemma.Among them,the duty of review given to ISPs is a new trend in the international change of the duty of care of ISPs,which is also the focus of our scholars.By focusing on the reasonableness of the duty of review set in the duty of care of China’s ISPs,it is introduced into China.Finally,in view of the shortcomings of the existing duty of care of network service providers in China,combining with the domestic and foreign experiences on the governance of network copyright infringement in the development of new technologies,the duty of care of ISPs in China using algorithm recommendation is improved from the following aspects on the basis of considering the actual situation in China: firstly,setting the filtering technology as the core of the duty of care for ISPs by means of judicial interpretation;secondly,to set up the accountability system of algorithms for ISPs with respect to the algorithms themselves;thirdly,to introduce "best practices" between ISPs and copyright owners to make up for the defects of the obligation of censorship,and to let public power intervene to ensure its good operation.