With the rise of the internet has come online infringement, which includes sales of counterfeit products, stealing trademarks or a company brand, and theft and trafficking of personal information. How to regulate online behavior has become a challenge for legislators all over the world. China's Civil Code provides more detailed provisions over internet infringement.

The internet now extends to almost every aspect of society and by default so has online infringement. A company that provides internet access to individuals, companies, families, and mobile users is called an internet service provider, or ISP.

Under China's current law, a rights-holder may notify an ISP of allegedly unlawful conduct by others. If the ISP fails to take prompt action – such as taking down allegedly infringing content – it will be held liable for the injury to the right-holder – who is a person or organization that owns the legal rights to something. While the law holds ISPs accountable, it also means the ISP has a lot of power in judging the infringement.

But according to Prof. Long Jun from Tsinghua University, the current law also leads to problems such as some ISPs are replacing the function of judicial adjudication.

"The current law has its advantage to prevent internet service providers avoiding liability on the grounds of technical neutrality. But in today's society, there are many forms of online infringement, and there are a large number of infringement cases. The judgment is very complex, even to the court, which also needs very in-depth consideration to make a decision. These cases should certainly not be decided by ISPs,"said Long.

China's Civil Code allows the ISP to forward the notice of infringement to the user, who can then send a counter-notice to the rights-holder via the ISP, denying any infringement. If the rights-holder does not take further legal action, the ISP must cease any remedial action, but will be shielded from liability.

"This means the law is relieving ISPs from the role of the ultimate decision maker, and makes it a messenger, preventing ISPs from becoming the final judge."said Prof. Long Jun.

But for those obvious tort actions – which is a civil wrong that causes harm or suffering – such as posting nude photos of others, ISPs should still act immediately. To further deter abuse of the notice and counter-notice process, a new provision also holds rights-holders liable for notifying the user of tortious behavior.

China's civil code takes effect on January 1, 2021. Dubbed as "an encyclopedia on social life" and a "civil constitution of modern society," a civil code is a wide-ranging legislative package that aims to provide a systematic legal protection of private rights including, inter alia, those related to property, contracts, personality, inheritance, marriage and family.

(Cover image designed by Gao Hongmei. /CGTN)