Strategies for Foreign Network Service Providers to Encounter Lawsuits Against Reputation Infringement in China

If a web search service provider detects malicious code in a certain website, can it give users a risk warning in the search results? Will this result lead to infringement of reputation?

In a typical case that a prominent internet company in USA successfully defended by Beijing Wis & Weals Law Firm against a Chinese law firm in the defamation, the above issues were discussed. Based on this typical case, we discuss how to distinguish the business behavior and public management behavior of the network service provider and how to obtain evidence from the electronic data stored in the third party and what are the constituent elements of the network reputation infringement.

I. Business and public management activities of Internet service providers

To comment on the responsibility of Internet service providers, we should not simply take the profits of commercial companies they serve as a one-size-fits-all approach but should take into full account the different services provided by different Internet service providers as well as the different attributes of Internet service providers in different stages so as to determine the responsibility of Internet service providers more accurately.

The implementation of public management activities by Internet service providers is determined by the characteristics of Internet information communication and the service modes of Internet service providers. These public management activities such as Internet security supervision, content review, illegal information prevention and user information protection are based on legal grounds.

II.  Acquisition of electronic data stored in third parties as evidence

In the typical case, the space of the plaintiff's website was hosted by a third party. Therefore, the cooperation of this third party is required in order to view the source code information of the plaintiff's website.

At the request of the defendants, the court of first instance issued an investigation order to the third party and assigned the defendants to query about the weblog and source code of website of the plaintiff.

Electronic data is one of the evidence forms stipulated in the Civil Procedure Law. Collection of electronic data evidence is more complex than other forms of  evidence because of its dynamic, diverse and changeable features. As far as the typical case is concerned, the retrieval of the weblog, especially the destroyed part, plays an important role in ascertaining the facts such as the embedding time and source of the malicious code. 

Ⅲ. Analysis on the elements of Internet reputation infringement

The right of reputation is a kind of personality right a citizen enjoys according to law to acquire the objective evaluation he/she receives in the society and to resist against others' infringement of his/her rights.

There are two main ways of infringement of reputation: insult and defamation, which result in the fact that social evaluation is reduced.

In the typical case, the alleged behavior means when the defendant’s search engine was used to search for the keyword of the plaintiff’s website, the words "This website probably contains malicious software program, which can cause damage to your computer" would appear beneath the search results, which did not constitute illegal act such as insult or defamation.