Liability of Internet Service Providers for Cyber Torts under Chinese Law

This article examines the latest legal principles regarding the liability of internet service providers (ISPs) for cyber torts under Chinese law by analysing the written rules embodied in the Civil Code, the Supreme People's Court's judicial interpretations, and the law in action demonstrated by judicial decisions. It clarifies three legal issues: (1) the ISP's affirmative duty to protect the victim; (2) its secondary liability for the tort committed by the internet service user (ISU); and (3) its third-tier liability to the allegedly infringing ISU. It finds that Chinese courts have been cautious in establishing the ISP's duty of care in two types of cases: its primary liability for infringement by omission and its secondary liability for the tort committed by the ISU. It also finds that Chinese law has endeavoured to strike a balance between the competing interests of the right holder and the allegedly infringing ISU when designing the ISP's roles in abating infringement and handling cyber disputes.