Technology Development and Legislation Progress: Third Party Liabilities of Internet Service Providers in China Tort Law

Abstract

This paper discusses about historical transitions of third party liabilities of Internet service provider (ISP) in Tort Law and Copyright Law of China. In the emerging period, drawbacks such as strong administrative legislation, limited valid duration of stipulations and unclear civil legislation characteristics existed in legislation, and the adjustment way in aspect of public law neglects civil remedy for the infringed. In the forming period, the legislation adjusts information network dissemination rights of copyright owners, performers, video & audio producers by transplanting system design highlights of DMCA. As a legislation model in the fusing period, Tort Liability Law (TLL) is featured in improving legal ranks, expanding adjustment scopes, updating legislation thoughts and balancing conflicts of interest. Where TLL § 36 is applicable, it should be clear that the § 36(1) does not classify ISP, and § 36(2),(3) are not applicable for parts of civil rights; the ‘notice’ is just a component of requirement of liability, whereas ‘take-down’ measures are not limited to those stipulated in the article, and all that are able to stop tort information dissemination should be deemed as reasonable ‘take-down’ measures; TLL § 36(3) is the subjective element for ISP to bear third party liabilities, and ‘know’ should be interpreted as ‘knew or should have known’.