Research On The Duty Of Care Of ISPs Under Algorithm Recommendation Mode

Algorithm recommendation,as a new way and means of allocating information resources,meets people’s diverse and personalized information needs and creates a new pattern of information dissemination.Internet platforms use algorithmic recommendation mode to draw "user profiles" for targeted recommendation of content,achieving fast and accurate matching between users and information,while improving user stickiness and correspondingly enhancing platform competitiveness.However,technological changes have also brought a series of social risks and legal regulatory dilemmas.The algorithm recommendation mode has brought a systematic impact on the operating program and theoretical basis of the "notice and takedown" rule.The duty of care set based on the original Internet technology foundation shows limitations,and in practice,there has been an issue of unclear standards for determining the duty of care.There is an urgent need to improve the issues related to the duty of care,clarify the legal attributes of algorithm recommendation,clarify the allocation of rights,responsibilities,and obligations of network service platforms,and achieve a balance of interests among copyright owners,platforms,and users under the algorithm recommendation model.In addition to the introduction and conclusion,this article is divided into four parts,specifically:Firstly,the practical issue of recognizing the duty of care of ISPs under algorithm recommendation mode is introduced.By defining the connotation of the duty of care of ISPs,clarifying the theoretical logic and core rules for determining the duty of care,and analyzing the operational mechanism of the algorithm recommendation mode and the theoretical basis for ISPs to assume the duty of care under its influence,it is pointed out that the algorithm recommendation mode has brought practical controversy to the determination of the duty of care of traditional ISPs,that is,the algorithm recommendation mode has shaken the theoretical position of "technology neutrality",The change in the platform’s "technological inability" has had an impact on the " notice and takedown " rule.Secondly,analyze the dilemma of recognizing the duty of care of ISPs under algorithm recommendation mode.It is pointed out that the application of algorithm recommendation mode has diversified the subjects who bear the duty of care,and the premise of bearing the duty of care has changed.The impact of this change is explained,which includes the confusion of the application level of the duty of care,the ambiguity of the positioning of the duty of care and the duty of review,and the unclear definition of the duty of care and the "higher duty of care".And it examines and reflects on the issue of unclear standards for determining the duty of care of ISPs under the current algorithm recommendation mode,pointing out that there are still controversies in judicial practice regarding whether the recognition platform "knows","should know",and whether necessary measures should be taken for infringement behavior.Once again,from the perspective of comparative law,study the measures taken by the United States and the European Union to address the issue of interest imbalance caused by algorithm recommendation models,providing empirical reference for China.The United States mainly increases the duty of care for online platforms by adding "notification blocking" measures and reducing the degree of "notification" requirements,and requires the adoption of best practice standards to set duty of care for different types of service providers.In order to support domestic enterprises,the European Union has set filtering obligations on online platforms,requiring them to conduct filtering reviews without the permission of copyright owners to improve their attention obligations.At the same time,it also requires that attention obligations be classified according to the scale and size of the platform.Through the investigation and research of foreign experiences,it is recognized that China should pay attention to maintaining a balance of interests,timely improve the duty of care of ISPs,and set the duty of care for the ranking of ISPs.Finally,suggestions for improving the recognition of the duty of care of ISPs are proposed.The specific content includes: firstly,it is necessary to change the applicable concept of the determination of the duty of care.When determining the duty of care,it should shift from pursuing instrumental rationality to value rationality,pay attention to maintaining the balance of interests among multiple parties,transform the passive post responsibility of ISPs into pre responsibility,and appropriately increase their duty of care.Secondly,it is necessary to apply the duty of care to the classification and classification of ISPs based on their market position and service types.From the perspective of market position,large platforms should bear limited review obligations within their technical capabilities,while small and medium-sized platforms only need to bear general attention obligations.From the perspective of service types,ISPs that provide information storage space services have the highest degree of application of algorithm recommendation mode,the strongest ability to control information,and should bear a higher duty of care than other types of ISPs.Thirdly,it is necessary to strengthen the effective operation of the "notice and takedown " program in the algorithm recommendation mode,and improve the standards for determining the duty of care.By dynamically assessing the effectiveness of defect notifications,the criteria for determining the composition of the platform as "knowingly" are clarified.By examining the attributes of online services,analyzing the characteristics of infringement behavior and the standards for determining the "should know" of third-party notification behavior improvement platforms,determining the starting point for determining the "timeliness" of necessary measures,and determining the "effectiveness" of necessary measures through the principle of proportionality,the standards for determining the implementation of necessary measures are improved.