Internet, Legal News

ISP Liability for Infringing Content: Blogger Beware

Chinese ISPs (Internet Service Providers) are often criticized for removing content from their sites that anyone suggests may be defamatory or violate some other party’s intellectual property rights. This criticism is not really justified because Chinese law essentially requires ISPs to take this action or be jointly liable for the offense. Article 36 in the Draft Tort Law succinctly states the current rule on ISP liability:

第三十六条. 网络服务提供者知道网络用户利用其网络服务侵害他人民事权益,未采取必要措施的,与该网络用户承担连带责任。网络用户利用网络服务实施侵权行为的,被侵权人有权通知网络服务提供者采取删除、屏蔽、断开链接等必要措施。网络服务提供者接到通知后未及时采取必要措施的,对损害的扩大部分与该网络用户承担连带责任。

Article Number 36: If an ISP knows its user has used the ISP’s network to infringe on the civil rights of another person and does not take appropriate action, then the ISP shall have joint liability together with the user. In a case where a internet user makes use of the network to engage in infringing activity, the infringed party has the right to give notice to the ISP to take necessary measures such as deletion, blocking or termination of service. After receiving such notice, if the ISP does not take act immediately to take such remedial action, then the ISP shall have joint liability with the the user for all increase in damage.

Under this rule, once an ISP receives a complaint, it is obligated to act immediately to take remedial action and if it fails to act it can be found jointly liable for any damage. Though there may be no damages, there is little to no benefit to the ISP to risk leaving the potentially offending material online. Therefore, prudent ISPs operating in China typically immediately remove any item any person claims to be infringing. This same rule applies to websites and blogs.

Foreign companies and individuals that engage in internet activity in China should be aware of this rule. You are not operating under anything close to the online free speech protections of the United States. For example, under Chinese law, a blog owner is considered responsible for all comments appearing in the blog and is therefore subject to this rule. If the blog is visible inside China, its publication is deemed to be in China and the above rule applies.

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