Court: Platform Shall be Jointly Liable for
Additional Harm
With the rapid development of the Internet, people can now express
their opinions freely on various platforms created by network service
providers. Most people will ask platforms to delete posts to protect their
rights if they fall victim to slanders on the Internet. So, if platforms ignore
their request fail to delete the posts, do they need to bear the corresponding
responsibility?
Recently, Shanghai No. 1 Intermediate People¡¯s Court (hereinafter
referred to as the ¡°Court¡±) concluded a dispute over reputation right. The
second instance found that the platform Zhihu did not take necessary measures
to deal with infringing content in a timely manner and thus should be held
jointly and severally liable for the additional harm with the poster.
Therefore, the Court rejected Zhihu¡¯s appeal and upheld the original judgment.
[Case Review]
Mr. Ding was very annoyed, because he found someone made personal
attacks against him on the Internet. On April 20, 2019, an anonymous user
posted a topic about Mr. Ding on Zhihu, and a user answered under the topic
with abusive and slanderous remarks. In May, another anonymous user added a new
answer, using insulting words.
Mr. Ding was very angry. He believed these false answers had
seriously infringed his right of reputation. So, on June 12th of the
same year, he sent a lawyer's letter to Zhi Zhe Tian Xia, the operator of
Zhihu, requesting the deletion of the three infringing answers immediately upon
receiving the lawyer's letter. The letter included the name and contact number
of Mr. Ding¡¯s lawyer, as well as the links of the three answers and the
excerpts of the remarks.
However, Zhihu didn¡¯t delete the relevant content. More and more
infringing remarks emerged. On June 18, a user posted a new topic of ¡°How to Judge
Mr. Ding,¡± and defamatory comments followed suit. The two topics went viral. As of July 1, their clicks had reached
more than 100,000.
On July 2, Mr. Ding once again entrusted a lawyer to send a
lawyer's letter by email, urging Zhi Zhe Tian Xia to delete the two infringing
topics and all the contents under the topics immediately.
Three days later, Zhi Zhe Tian Xia deleted one of the topics and
the content under it, but only one user's answer under the other topic was
deleted.
Mr. Ding could not take it anymore, and filed a lawsuit to the
court, requesting Zhi Zhe Tian Xia immediately stop the infringement, delete
all content under the infringing topic on Zhihu, publish a one-month statement
to apologize and eliminate the effects, and pay RMB 60,000 for property loss
and mental damages.
After receiving the litigation materials, Zhi Zhe Tian Xia deleted
the remaining infringing topic and the content under it on July 29, 2019.
[Case Study]
Through trial, the first-instance court held that citizens enjoy
the right to reputation in accordance with law, and that no one may damage the
reputation of other citizens by abuse, slander and other means. Fully aware that
the posts involved are highly likely to damage Mr. Ding's reputation rights,
Zhi Zhe Tian Xia did not take necessary measures in time and thus should be
held jointly and severally liable for the additional harm with the publisher.
Hence the Court ruled that Zhi Zhe Tian Xia publish a statement on Zhihu for
seven consecutive days to make apologies to Mr. Ding, compensate him RMB 1000,
and dismissed Mr. Ding¡¯s other claims.
Unsatisfied with the ruling, Zhi Zhe Tian Xia brought an appeal to
the Court.
Zhi Zhe Tian Xia believed that it dealt with the content involved
in a timely manner and fulfilled its obligation to take necessary measures
which should and can be taken by it as a network service provider and thus
should not be held liable.
Through trial, the Court holds that according to Article 5 of the Provisions of the Supreme People's Court on
Several Issues Concerning the Application of Law in the Trial of Civil Dispute
Cases of Infringing Personal Rights and Interests Through the Use of
Information Networks, the victim may send a notice to the network service
provider in writing or other way published by the network service provider. The
lawyer's letter sent by Mr. Ding included the name and contact information of
the informant, the website address where he requested to take necessary
actions, and the reason for the deletion of relevant information, etc.,
constituting a valid notice. As a professional network service provider, Zhi
Zhe Tian Xia should have the corresponding information management capability
and the technical possibility of taking preventive measures against
infringement. Mr. Ding furnished preliminary evidence for proving the
infringement, the content of which is sufficient for Zhi Zhe Tian Xia to
determine whether Internet users had used the Internet services to commit the
infringement. In the event the network service provider fails to take necessary
measures in time after receiving the notice, it shall be jointly and severally
liable with the network user for the additional harm. Zhi Zhe Tian Xia didn¡¯t
deal with the matter until more than 20 days from receiving the lawyer¡¯s
letter. This went beyond the limit of timely dealing with the matter and caused
the further spreading of the content. Therefore, it should bear the
corresponding liability for the additional harm.
To sum up, the Court held that Zhi Zhe Tian Xia's appeal claims
could not be established, and thus rejected the appeal and upheld the original
judgment.
Network service companies as information platform service
providers should provide unimpeded and effective channels for infringement complaints
based on ever-improving information management and governance capabilities, and
at the same time fulfill their obligations of timely reviewing and handling
complaints. When receiving valid complaints, they should promptly block or
delete the infringing expressions; when receiving invalid complaints, they
should actively explain the reasons for invalidity or inform the complainers the
review results.
Network users should also be responsible for their own words and
deeds. The Internet is a virtual world, but not a land beyond the law. Citizens
must also comply with relevant laws and regulations when expressing their opinions.
Only when platforms and users jointly maintain a healthy and orderly network
environment can a secure and civilized network environment be established.
[Relevant Laws]
1. Tort Liability Law of the
People's Republic of China
Article 36 ...
Where a network user commits a tort through the network services, the victim of
the tort shall be entitled to notify the network service provider to take such
necessary measures as deletion, block or disconnection. In the event the
network service provider fails to take necessary measures in time after
receiving the notice, it shall be jointly and severally liable with the network
user for the additional harm.
...
¡¡¡¡
(Written by Li Danyang, Shanghai No. 1 Intermediate People¡¯s
Court)