Article 1197
Where network service providers know or should know that network users are using their network services to infringe on the civil rights and interests of others, but fail to take necessary measures, they are jointly and severally liable with that network user.
1. The main purpose of this article
This article is a provision on the tort liability of a network service provider when it knows or should know that a network user has committed an infringement through its network services.
II. Evolution of the Provisions
This article is amended on the basis of paragraph 3 of Article 36 of the original Tort Liability Law, and the word "know" in the above article is amended to "knew or should have known".
Since the 80s of the 20th century, with the development of Internet technology and the deepening of society's understanding of Internet technology, the principle of attribution of responsibility for network service providers has undergone a process of change. During the drafting of the Civil Code, there was also a dispute over fault liability and no-fault liability on this issue. After research, the legislature believes that in the early stage of network development, network service providers should be treated on an equal footing with publishing houses and newspapers, and require them to bear the obligation of unlimited censorship, and as long as there is infringing information on the website, regardless of whether the infringing information is published by the website itself or uploaded and published by network users, they must bear the liability for aiding the infringement. Courts in some countries have ruled that such network service providers are liable for infringement on the basis of no-fault liability, a policy that has overwhelmed many websites. As Internet technology continues to penetrate into all aspects of social life such as clothing, food, housing, and transportation, and the research on network issues is becoming more and more in-depth, people gradually realize that network service providers that provide technical services do not directly provide information to the public, but only provide a platform for network users to publish or retrieve information。 In contrast, the principle of technology neutrality is more deeply rooted in the hearts of the people, which makes judicial practice re-examine the principle of attribution of responsibility to network service providers. After more than 20 years of judicial practice, the mainland has established a trial policy suited to the mainland's national conditions, and has long reached a consensus on the principle of attributing responsibility for faults. Therefore, the legislature has determined the indirect tort liability of network service providers as fault liability. According to the provisions of this article, the tort liability borne by network service providers providing technical services is fault liability, and its fault is reflected in the fact that network service providers knew or should have known that network users were using their network services to infringe on the civil rights and interests of others, but failed to take necessary measures. With regard to the principle of attribution of liability for indirect infringement by network service providers, paragraph 3 of article 36 of the original Tort Liability Law used "knowledge" as the subjective element for network service providers to bear liability for indirect infringement. "Knowing", in terms of interpretation, includes the two subjective states of "knowing" and "should know", and courts have also operated in this way in trial practice for many years. In the process of compiling the Civil Code, there were suggestions to amend the word "know" in paragraph 3 of Article 36 of the original Tort Liability Law to "knew or should have known", so that the connotation of the amendment has not changed, but it is clearer and clearer, and at the same time, it also maintains the unity of terminology between different laws, so the legislature has adopted this suggestion after research.
3. Interpretation of Provisions
This article stipulates the red flag principle of liability for online infringement.
The red flag principle refers to the rule that if a network user commits an infringement on a network provided by a network service provider, and the infringement of the civil rights and interests of others is very clear (compared to the red flag fluttering on the Internet), and the network service provider knows or should know but does not take necessary measures, that is, the rule that the network service provider shall bear the liability for infringement.
The requirements for the application of the red flag principle are: (1) the network user commits an infringement on the network service provider's website, (2) the infringing nature of the infringement is obvious and can be confirmed without proof, (3) the network service provider knows or should know that the network user has committed such an infringement on its own website, and (4) the network service provider has not taken necessary measures to delete, block or disconnect the link to such infringing information. In the third element, knowing means knowing, and knowing should mean that the network service provider should know based on the actual situation, for example, the network service provider has edited, processed, pinned, forwarded, etc., which is proof that the network service provider should know.
The consequence of applying the red flag principle is that the network service provider who knows or should know that the network user has committed the infringing act on its own website has not taken necessary measures against the infringing information, and must be jointly and severally liable for the damage caused by the infringed party together with the network user who committed the infringing act. The rules for joint and several liability are governed by the provisions of Article 178 of the Civil Code.
4. Cases
Xinchuan v. Tudou, a dispute over infringement of copyright property rights
Facts: Warner Hengdian owns the relevant copyrights of the film "Crazy Stone" in Chinese mainland, including the right of reproduction, distribution and information network transmission, and it authorized Xinchuan Company to use the information network communication right of the work exclusively for a period of 3 years. Registered users of Tudou upload the film to the website for the public to play online. The court of first instance held that although Tudou provided users with information storage space, Tudou was aware of the possibility of pirated and illegally reprinted works being uploaded, but neglected to manage and monitor them, and subjectively connived at and helped others to infringe on the information network communication rights enjoyed by Xinchuan Company, and did not fully meet the conditions for not being liable for compensation as stipulated in Article 23 of the Regulations on the Protection of Information Network Communication Rights. The court of second instance held that, according to the provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Computer Network Copyright Disputes, Tudou was subjectively at fault for helping others to commit copyright infringement through the Internet, and should bear the corresponding civil liability for infringement.
5. Analysis
This case concerns the "red flag principle" in online infringement liability. Although it is impossible and unable for network service providers to identify all infringements committed through the use of their network services, the identification and monitoring of certain online infringements can and should be done from the perspective of common sense, legal provisions or technical feasibility. If the corresponding obligations are not fulfilled, the network service provider shall bear joint and several liability together with the network user who committed the specific infringement. For example, in this case, from the perspective of common sense, a professional video website operator should know that the copyright owner of a film or television drama is unlikely to make its copyrighted work available for free on the Internet, and when its website links to a webpage where the film or television drama can be watched for free, it has reasonable grounds to know that there is an infringement. Someone illegally uploaded a popular movie that is currently being shown in major theaters across the country to a professional video-sharing website, resulting in a large number of people downloading it. It's hard to say that the site doesn't know about that. Therefore, Tudou's obligation to review and delete is obviously negligent, and Tudou should be jointly and severally liable with the network user who committed the infringement.