According to Article 74 of the E-Commerce Law of the People's Republic of China, if an e-commerce operator sells goods or provides services, fails to perform its contractual obligations or performs its contractual obligations in accordance with the agreement, or causes damage to others, it shall bear civil liability in accordance with law.
1.E-commerce network infringement
"E-commerce online infringement" refers to the use of the Internet by the subject of an e-commerce legal relationship to infringe upon the civil rights and interests of others.
The manifestations of infringement by network users and network service providers, who are the subject of e-commerce legal relations, generally include: acts of infringing on the personality rights of others, acts infringing on property interests, and acts infringing on the protection of intellectual property rights.
Since online infringement is a variety of acts that infringe on the civil rights and interests of others on the Internet, the general rules of online infringement liability include the rules for the liability of network users for infringing acts committed by others on the Internet, and the rules for the liability of network service providers for using their own networks to commit infringements.
In either case, the principle of fault liability is applied to determine tort liability, and network users or network service providers should be responsible for their own online infringements.
2.E-commerce network infringement liability
E-commerce online infringement liability refers to the legal consequences that the parties to the e-commerce legal relationship should bear as a result of committing online infringement.
According to Article 1194 of the Civil Code, "Network users and network service providers who use the network to infringe on the civil rights and interests of others shall bear tort liability." Where the law provides otherwise, follow those provisions." "Otherwise provided by law" here refers to situations where other laws infringe upon the civil rights and interests of others and bear civil liability for network users and network service providers using the network.
For example, the E-commerce Law, the Consumer Rights Protection Law, and the Food Safety Law all make special provisions on this type of infringement, and the tort liability of civil subjects shall be determined in accordance with the relevant provisions of their respective laws.
3.E-commerce safe harbor principle
The "safe harbor" principle of e-commerce refers to the conditions under which network service providers are exempted from liability for infringement. That is, after the network service provider knows or realizes the existence of the infringing act, it quickly deletes or blocks access to the infringing material. As the necessary measures were taken quickly to stop the further expansion of the infringement, the network service provider could claim access to a "safe haven" and thus be exempted from liability.
The "safe harbor" doctrine dates back to Section 512(c) of the U.S. DMCA.
Although the "safe harbor principle" was first applied to the field of copyright, from the perspective of the development of judicial practice, the "safe harbor" principle has been transformed into more of an element in judging the subjective fault of network service providers in the field of online copyright.
As for the absorption and legislation of the "safe harbor principle", China has also reflected it in the relevant provisions of the "Regulations on the Protection of the Right of Information Network Transmission". The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Infringement of the Right of Information Network Transmission also make corresponding provisions in this regard.
Articles 1195 and 1196 of China's Civil Code stipulate the notification rule and counter-notification rule for the safe harbor principle of online infringement liability.
Compared with the relevant rules in China's E-commerce Law, which came into effect on January 1, 2019, the rules in the Civil Code have more certainty and sufficiency of evidence, which is more conducive to the objective and accurate determination of the tort liability of relevant entities.