On the Network Operator's Obligation of Censoring Illegal Information
The legal basis for network operators to undertake the obligation of reviewing illegal information has shown a trend towards low-level and domain oriented.On the one hand,low-level standardization refers to the content of both departmen-tal regulations and administrative normative documents breaking through the scope of"information prohibited by laws and ad-ministrative regulations from being published or transmitted"in the Decision on Strengthening Network Information Protection and the Cybersecurity Law.On the other hand,territorialization refers to the provision in the"Decision on Strengthening Net-work Information Protection"and the"Cybersecurity Law"to transfer the scope of illegal information that network operators need to fulfill their review obligations to various laws and administrative regulations in different fields.The trend towards low ranking and domain specialization has increased the responsibility of network operators to review illegal information.Compared with the governance paradigm in traditional fields,the field of online illegal information censorship reflects a paradigm shift from consequence regulation to risk regulation,from rigid regulation to flexible regulation,from government gov-ernance to collaborative governance,and from result responsibility to procedural responsibility.Firstly,in response to the high complexity and uncertainty of the risk society,the governance of online information has evolved from a consequence regulation paradigm to a risk regulation paradigm,fully utilizing risk prevention tools and becoming a necessary measure to cope with the risk society.Secondly,in the field of online content governance,most legal norms do not specify in detail the specific measures for network operators to review illegal information,but require network operators to fulfill their obligation to review illegal infor-mation,reflecting strong flexibility.Thirdly,with the arrival of a risk society,it is necessary to establish a collaborative gover-nance and regulatory system that includes a wide range of stakeholders such as network operators,regulatory agencies,and in-dustry organizations.The focus of responsibility for the review of illegal information on the internet has shifted from physical lia-bility for causing damage to procedural liability for network operators who fail to fulfill their obligations to review illegal infor-mation in various procedures and stages,reflecting clear procedural characteristics.The duty of care is the core of network operators'obligation to review illegal information,which is a responsibility re-quired by law for social entities to take proactive measures to avoid possible consequences,and is also based on the ability to pay attention.The size of the attention ability of different subjects determines the differences in their attention obligations.In terms of safeguarding private law interests,lenient duty of care is adopted,and the law requires network operators to adopt rela-tively lenient measures to discover illegal situations and avoid possible consequences.It is mainly applicable to the private law field of civil network infringement such as copyright infringement and reputation infringement.Its inherent logic is that network operators have the obligation to review and handle illegal information based on complaints from rights holders,or directly dis-pose of information that is obviously seriously illegal even though no one has complained,in order to fulfill the obligation of re-viewing illegal information.In terms of safeguarding public interests,strict duty of care is adopted,and the law requires net-work operators to take measures to identify and discover illegal situations to the maximum extent possible and avoid the conse-quences of harm.Applying strict duty of care requires relying on network operators to train mature artificial intelligence models through a sufficient sample library to efficiently monitor network information.The transformation of online illegal information from rigid regulation to flexible regulation paradigm determines that the strength of strict duty of care should be determined comprehensively based on factors such as the field and form of illegal infor-mation,as well as the means that network operators can take;The shift from the paradigm of result responsibility to procedural responsibility regulation means that not all network operators who fail to identify and discover illegal information are required to bear relevant legal responsibilities.Whether to bear legal responsibility mainly depends on whether the artificial intelligence model has been supervised and trained before and during the process,the quality control of corpus data has been carried out,a manual review team has been equipped,and relevant systems have been established to fulfill procedural obligations.
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维普
