Analysis of the Rules of “Necessary Measures” in Internet Service Provider’s Tort Liability

Abstract

Due to the rapid development of the Internet, a large number of infringing acts occur frequently on online platforms. The traditional "necessary measures" in the form of "positioning and removal" can no longer meet the large-scale and repeated infringement of the network world today. And China's law for the "necessary measures" provisions is limited, but its extension in judicial practice and the trend of expansion for the rule has generated more controversy. This paper adopts the literature case analysis method, comparative study method and induction method to study and analyze the rule of "necessary measures" in the tort liability of network service providers. Considering that the rule originally originated from the United States of America's safe harbor principle, it is reasonable to draw on extraterritorial experience in the application. However, the improvement of the rule of necessary measures should still be combined with the characteristics of the local industry. In China, the necessary measures should be divided into types and defined in terms of form and content, which can also be judiciously determined according to the relevant definition criteria of the proportionality principle. At the same time, under general circumstances, the theoretical and judicial circles should adhere to the separation of "forwarding notice" and "necessary measures". According to the characteristics of the platform itself and the specificity of the type of services provided, the forwarding notice should be exceptionally considered as one of the necessary measures.