What they did was just a small fight, and the original author could not attack them one by one. Don't buy it, thank you! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !
Laws and regulations on infringement:
Chapter three? Cyberspace tort law?
Infringement is the most common illegal act in cyberspace. ?
The first section? Infringe on the freedom of network communication?
On the issue of freedom of personal communication on the Internet, Americans who have always been famous for advocating freedom once again denied the federal law. As the American Communications Act (1996) (Telecommunications? Acting? Yes? 1996), a part of the American Communications Rules Act (CDA), has been mentioned before. Article 223 of the law prohibits people from publishing obscene materials or "obviously offensive" materials to minors through the Internet; Those who violate this law will be fined and imprisoned for two years. In the eyes of most people, the goal of passing this law by Congress is just and important. However, only a few minutes after the law came into effect, the American Civil Liberties Union filed a complaint with the federal court in Philadelphia, accusing CDA of violating the First Amendment of the US Constitution. (1) Plaintiff of Article B? , (2) and (d)( 1), (2)? The terms are questioned. 1In July, 1996, a court composed of three judges in the Federal Court of Philadelphia overturned the questioned CDA clause and considered the law unconstitutional. The defendant refused to accept and appealed to the Supreme Court of the United States. 1On June 26, 1997, the Supreme Court made an amazing and historic judgment, overturning laws and regulations that restricted the dissemination of obscene pictures and words on the Internet. Considering that the Internet should have the right to freedom of speech, the Supreme Court made this judgment by 7 votes to 2, ruling that all the main provisions of CDA violated citizens' right to freedom of speech? . This means that the government's censorship of Internet content is illegal, which means that according to the First Amendment of the US Constitution, thousands of Internet users are fully protected by the freedom of speech clause. ?
In the protection of personal communication secrets and privacy, although e-mail is not a very secure communication method in theory, and it may be tampered with during transmission, people still tend to trust the e-mail protected by personal password encryption. The most common infringement here is the invasion of so-called "hackers", who change the content of the email and then send it to the recipient, so that what the recipient sees is not the content sent by the real sender. Under normal circumstances, it is difficult for the infringed to find and track down the "hacker", let alone catch it. Another situation is that the ISP illegally transfers or closes the customer's mail, which leads to the loss of the customer's mail and the disclosure of personal privacy or business secrets. This is actually no different from opening other people's letters without permission and infringing on other people's communication secrets. However, at present, the criminal laws of various countries have not officially recognized the legal status of e-mail. But in the long run, it is inevitable that e-mail will replace most faxes and ordinary paper letters. Legally confirming the status of e-mail will make the law more perfect. In the courts of China, several cases about network infringement have been tried in recent two years. One of them happened between two students sharing a mailbox in Peking University. They used this mailbox to apply for scholarships in American universities, and one of them sent an email to American universities in the name of another, which directly led to the failure of the impersonated plaintiff's study abroad plan. During the trial, the defendant never admitted the act of impersonation, and neither the court nor the plaintiff had sufficient evidence, but under the court, the defendant admitted the fault. This infringement case was solved by litigation for the first time in China, which attracted national attention at that time. Xinhua News Agency in China and Voice of Freedom (VOA) in the United States have reported this in detail, but they have no successful experience in judicial practice. ?
Another common phenomenon is spam (spam? E-mail), that is, the mailbox is full of content that has nothing to do with me. A serious consequence of spam is to detonate the mailbox and make it unable to be used normally. Because the mailbox is a part of the pre-set disk space (usually one or two megabytes), once the total amount of mail exceeds this capacity, it is difficult for the mailbox to work. Sending a lot of junk mail online can easily destroy a person's mailbox. If you use some software or method, you can attack the target continuously according to the set time and content. Once the target is paralyzed by overload, the truly valuable content is lost. It is safer to use filtering, that is, to set what kind of people or what kind of content to accept, but other valuable content will also be stifled outside the mailbox. In addition, a large number of spam wastes the money and time of network users characterized by their own expenses, resulting in the tension of the network system. The solution is to take measures against spammers. In e-mail advertisements, individual users can sue the publisher to stop the infringement on the grounds that the publisher has violated the privacy right. In fax advertising, some countries have special laws and regulations to control the fax transmission that abuses other people's fax paper. In online advertising, although this remedy is feasible in theory, it is not easy to find the real advertisement publisher because of the huge network. Therefore, despite repeated complaints from netizens, it is difficult to take practical measures. ?
Encouragingly, the US court recently imposed sanctions on Wallace and his company, which is called "the king of spam". It opened the prelude of e-mail management. Wallace is the boss of a promotion company. He is in charge of developing fast e-mail sending software, distributing commercial mail to many ISP users, and sometimes stealing the name of ISP (just by changing the return address), causing users to complain. Bigfoot (Bigfoot? Partner? Ltd.) and EarthLink (EarthLink? NetworkInc) filed a lawsuit against him in the Federal Court of new york and the High Court of Los Angeles County, California. Five months later, the federal court in new york ruled that Wallace should delete the emails of Bigfoot and its customers from his network. If Wallace or his agent distributes spam to users of Bigfoot, or sends such emails in the name of the company, Wallace or his agent will pay a fine of 1 10,000 USD per day; The Los Angeles County High Court ruled that Wallace was prohibited from sending any spam to users of Land Connect Company according to the law prohibiting illegal crossing of private territory. Wallace apologized in writing to the injured user and promised that if he did it again, he would be fined one million dollars. The court held that the network of Internet companies can be regarded as the company's territory. Therefore, Wallace's distribution of spam to corporate users is tantamount to illegal invasion of corporate territory. But throughout California, there is still a lot of controversy about whether email should be managed. From the standpoint of protecting citizens' freedom of speech, the party who opposes legislation thinks that sending e-mails belongs to the same category as citizens' freedom of speech. Some people are willing to accept such advertisements, and consumers have the freedom to choose, but most people are in favor of limiting junk advertisements. ?
Before June, 65438+July, 0997, Nevada, USA, took the lead in legislating e-mail to supervise the illegal sending of e-mail; ? 1997 In the spring, Connecticut passed the Consumer Privacy Act, which restricted advertisements spread by e-mail. But the momentum is not great. This time, the court confirmed the nature of spam in the form of precedent, and it is believed that more and more States will legislate on spam. Washington state is one of them. The bill of Washington State will take effect in 90 days. The bill stipulates that people who send a large number of e-mails should not hide their sending addresses, conceal their transmission paths, or provide misleading information in the subject items of e-mails, such as advocating rich plans, treating remedies or explicit pornographic content. The new law prohibits sending deceptive "headline" emails from computers in Washington state, and also prohibits sending such emails to senders who know or have reason to believe that the recipients are residents of that state. The sender must determine whether the recipient lives in Washington state. As for the punishment measures, the Act stipulates that individuals who receive such emails can claim up to $500 for each email that violates the Act, while Internet service providers can claim up to $65,438+$0,000 for each email. ? The most fatal weakness of this law is that it doesn't say who will enforce it and how. ?
In the discussion of newsgroups (newsgroups), what violates the order of network communication is to repeatedly publish a certain piece of information (republish? News? Spam), mail letters similar to lottery chains (postal service? Lottery? Chain? Letters? Manufacturing? Money? Quick), a discussion group that sends a lot of binary passwords (big? Binary? Coding? Leave a message Are you online? Discuss? Group) and other behaviors that violate normal newsgroup rules. These behaviors have caused unnecessary burdens and troubles to network users. After all,? Newsgroups need the cooperation of all users and this communication tool, in which recipients pay their own expenses (communication fees, storage fees, etc.). ), if those who violate the normal communication order are often involved, they will undoubtedly lose their due role. At present, the methods to deal with these behaviors almost remain in the moral field. The usual practice is to persuade the actors to restrain themselves first, and declare the death penalty (UDP, news group? Death? Fine).
Part two? Internet Defamation and Privacy?
As a medium, the Internet is unmatched by any other medium in terms of its universality and timeliness of communication, and it is precisely this that is misused by some people. It is easy to publish slanderous remarks on the internet, and the "effect" is amazing. 1997 Summer, an "Poisonous Island Incident in China" happened on the Internet. The cause of the incident is that Wang Jiangmin, a domestic antivirus software expert, added a software called "logic bomb" to K300. Bomb) ",whoever uses pirated software, its computer program will be locked and can't be used normally. Jiang Min must be found to admit his mistake and promise that he will not use pirated software to open logical locks in the future. Some domestic software vendors attack Wang Jiangmin anonymously on BBS, and distribute programs to crack logical locks for free. ? Regardless of whether it is illegal for Jiang Min Company to add this computer program privately (although the public security department punished Jiang Min Company, this does not mean that Jiang Min is illegal, in fact, many people, including the author, think it is a legitimate act of self-defense), and the crime of libel alone is enough to illustrate the power of BBS on the Internet. Shortly thereafter, the Ministry of Public Security issued regulations on managing Internet BBS. Internet service providers must be responsible for managing their bulletin boards. ?
There are similar cases in Australian case law. In the case of 1994, Dr. Lindos of the University of Western Australia sued an Internet user who made comments on the news group that belittled his academic ability. The plaintiff Lindos sued the court for defamation of the defendant, and the court ruled that Lindos? Win this lawsuit. The case shows that any information posted on the internet, even if it is only spread by a few people, may be seen by countless people. Once it is unfavorable to the object of discussion, it may be charged with libel, and the publisher may have to bear certain responsibilities. ?
Internet chat rooms and newsgroups are similar in communication methods. Speaking freely in such an open space, if it involves the privacy of others, is tantamount to exposing people's scars in public places; Nonsense in chat rooms is inevitable, which violates network etiquette and often involves slander. ?
In online libel, because it is difficult for the plaintiff to directly find the slanderer, most of them directly sue the Internet service provider. The case of new york High Court in May, 1995, is typical. In this case, Prodigy, the third largest ISP in the United States that provides online services? The service company accused a securities company of publishing articles on the system bulletin board? (Oakmont) Accused of libel and dereliction of duty for possessing fraudulent information. The reason is that Internet providers edit and control the information on their bulletin boards. The court ruled that prodigy? The service company failed to perform its supervisory duties correctly and decided to be responsible for the information sent by its users. ?
Part three? ISP Responsibility and Advertising Law?
Rationally regulating ISP's responsibility will not only help ISP's own development and the prosperity of information industry, but also play a preventive role against illegal behavior of ISP users. ?
The potential liability of ISP is mostly caused by libel and copyright infringement. Whether an ISP bears the responsibility of libel mainly depends on whether it controls or supervises the contents on the bulletin board. If it tries to supervise or control the content on the bulletin board or try to control the uploaded information, it may be liable for libel because it is the publisher of the uploaded information; If not, just as a publisher, not liable for libel. ?
In a small room? Inc？ V. CompuServe? The company, CompuServe, was ruled not responsible for publishing defamatory remarks on the Internet because of its independent users. The court held: CompuServe? In essence, it is an electronic library that makes profits by charging users. It has a large collection and publications. Like a public library, it can't edit and control the contents of publications. It is unrealistic to ask it to censor every possible defamatory content, just like asking publishers. ?
But in another case, stratton? Oakmont? Inc？ Five? A prodigy? Service? The company? That is the situation mentioned in the last section. ? The court held that Prodigy Company called it a family-oriented network company in its advertisement, which has a good protection system and software, and can authorize the information publisher to use or delete the content on the bulletin board, because it tries to control the content on the bulletin board, so it should bear the responsibility of publishing defamatory remarks like the publisher. ?
Another potential responsibility of ISP is copyright infringement. In playboy? Enterprise,? Inc.v？ Flanna, in this case, dude? Sue an internet service provider because a user of this company will bring a playboy? Copyright photos were uploaded to the internet. Although I didn't know that this photo was the copyright of others, the court ruled that the Internet service provider was directly responsible for its dissemination and unauthorized reproduction. ?
From this point of view, the responsibility that the United States requires Internet service providers to bear is very heavy. In China, although there is no realistic precedent reflecting ISP's responsibility, the relevant laws and regulations have the same responsibility for ISP. China Public Multimedia Communication Network (169, different from CHINANET) was established and monopolized by China General Administration of Posts and Telecommunications (China Telecom) on the basis of the national public telecommunication network, and it is the largest and most competitive service provider in China. China former Ministry of Posts and Telecommunications? The Administrative Measures for Public Multimedia Communication in China (now the Ministry of Information Industry), which was promulgated by197 in September and implemented by 10 in February, defined the concepts of access service provider (ISP) and information source provider in legal form for the first time. According to the law, information source providers should bear the main responsibility for the legality and authenticity of the information they provide to China public multimedia communication network; At the same time, network operators and access service providers should also bear corresponding responsibilities. ?
ISP's responsibility is also the most involved in libel and invasion of others' privacy. According to the general law applicable in Germany, the multimedia law in Germany first stipulates that ISP should be responsible for the content it produces; Secondly, if the ISP knows the content of the information produced by others, can take technical measures to prevent it from being used, and can reasonably foresee that it should be avoided, then the ISP should be responsible for the information produced by him and provided to users, that is, the ISP should share the responsibility with the information producers. On the issue of "rationality", Germany adopts equity similar to Anglo-American law to judge rationality. In addition, the law also stipulates that ISP is not only responsible for the information of the third party that accepts its services. In this case, the responsible person is the producer of information and the party that sends information to the relevant network. In terms of protecting personal privacy, this law has made different protection decrees from the previous ones. Due to the advanced communication and information technology of modern network, people can easily obtain the information they care about. Collecting, collating and analyzing personal data is very important for life insurance companies, banks, retailers and many other institutions. Although the multimedia law does not issue special provisions for the protection of personal data, it is involved in the general provisions on the use of data protection. For example, ISP should prevent others from collecting personal data through appropriate system technology and structural design. User's personal data can only be used with the user's consent or legal permission. The most typical is online settlement. Including online deposit and payment (online? Payment) should allow users to use anonymity or pseudonyms. ?
Compared with other countries, the Interim Provisions on the Administration of International Networking of Computer Information Networks issued by the State Council, China 1 in February and revised by1on May 20th, 1997, and its implementation measures (promulgated and implemented on March 6th, 1998 16) have a greater impact on access units (ISPs). In accordance with the provisions of the third paragraph of Article 17 of the Implementation Measures, "access units shall be subject to the management of interconnected units (referring to China Public Computer Internet, China Jinqiao Information Network, China Education and Research Computer Network, cstnet and other four networks-author's note) and superior access units; Sign an agreement with the access unit at a lower level and sign a user code with the user ",so as to achieve hierarchical management and hierarchical inspection, and ensure that the end users of the network, that is, users, abide by Article 18 of the Measures." Unauthorized users shall not enter unauthorized computer systems. Tampering with other people's information; Do not spread malicious information online or send information in the name of others; Invade the privacy of others; Do not manufacture and spread computer viruses or engage in other activities that infringe on the legitimate rights and interests of the network and others ",Article 20" Do not use the Internet to engage in illegal and criminal activities that endanger national security and reveal state secrets, and do not produce, consult, copy or spread harmful information that harms social security and obscenity; If harmful information is found, it should be reported to the relevant competent authorities in time and measures should be taken in time to prevent its spread. " ?
In view of the responsibility of ISP, ISP should pay attention to prevent these risks when communicating with its users and customers. The best way is to sign a written agreement with users or customers, stating that users should know that ISP does not control or manage their content; Users should know that their content is entering the public domain; Users should ensure that they have full rights to the uploaded content; ISP？ Does not assume any responsibility for deciding whether the uploaded content is protected or used by other users. In addition, the ISP should also sign a compensation clause with the user to compensate the third party for its losses (including improper use, release, distribution, demonstration of protected content, etc.). ) caused by litigation. Although it's not safe, it can minimize your responsibility. ?
The management of online advertising in various countries is almost blank. The characteristics of network information dissemination make it difficult for people to identify whether it is advertising or general information. However, it cannot be ignored that online advertising is becoming more and more popular, and the annual growth rate of online advertising revenue is above 100%. The famous search website Yahoo? In the 1997 fiscal year, the advertising revenue alone reached more than 54 million dollars? . The advertising revenue of Yinghaiwei Communication, a domestic network service provider, also accounts for a large part of its business revenue. However, Ying Haiwei is not an advertising service provider approved and registered by China Administration for Industry and Commerce, so does its advertising revenue become illegal because it exceeds its business scope? On the one hand, China's "Advertising Law" does not specifically stipulate that the Internet is also the carrier of advertising, but only stipulates "and all other media" (this purely legislative technical issue is of little significance to law enforcement); On the other hand, if the legality of online advertising is recognized, then the network service providers will be bound by the advertising law, and the advertising law also has regional restrictions. How to standardize the order of online advertising is still a problem. An American insurance company was almost sued by a British customer for selling its life insurance online, because such sales were illegal in Britain. In order to prevent its business in the UK from being damaged by a long and entangled lawsuit, the insurance company wisely closed its website in the UK and opened it only to North American users. ?
Another means of Internet advertising management is to provide advertisers with specialized software or send them a large number of emails quickly through software to achieve the commercial purpose of promoting sales. This software can send thousands of emails at a time. The software automatically sends business information to network users by searching email addresses on the network and obtaining information of ISP users from Internet service providers (ISPs). This kind of advertising business behavior is also not involved in the traditional advertising law. However, because it is a message that the receiver pays, it has been opposed by most netizens. At the beginning of this chapter, the laws and precedents of some American States that restrict or prohibit such advertisements through legislation have been introduced. Now some people in Taiwan Province Province have started to localize this kind of software. Transplanting spam to the Chinese world probably won't last long.