Is the "Safe Harbor" of internet platform disappearing?

The video of the “Tan Tan Transportation”(谭谈交通) was removed from several major internet platforms, which is the latest typical network infringement case. In similar cases, the obligee may claim for infringement against the infringer and relevant internet platforms.

The “Safe Harbor Principle” derived from the “Digital Millennium Copyright Act of the United States”, which has built a safe harbor for internet platforms, that is, unless an internet platform ignores the obvious infringement and does not take corresponding measures, it could be exempted from liabilities according to this principle.

However, in recent years, there are changes in the legislative and judicial practice, which show that the scope of the “safe harbor” for internet platforms is gradually shrinking, in other words, the “safe harbor” is not 100% safe for internet platforms anymore.

From the perspective to legislation, the requirements for network service providers have changed from “notification – deletion” to “notification – necessary measures”, which means the providers’ obligations have changed from single to diverse, simple to complex.

The “Regulations on Protection of Information Network Transmission Right” (implemented from July 1, 2006) stipulated that upon receipt of the notice from the rights holder, the network service provider shall forthwith delete the allegedly infringing works or remove the relevant links, that is, the so-called “notification – deletion”.

The “Tort Law” (implemented from July 1, 2010) further expanded the obligations of providers that they shall adopt requisite measures such as deletion, shielding, breaking of hyperlinks, etc., that is, the so-called “notification – necessary measures”. The allegedly measures become various. Later, the “E-commerce Law” (implemented from Jan. 1, 2019) adds two requisite measures that the providers shall terminate transaction, and services.

The latest is the “Civil Code” (implemented from Jan. 1, 2021) which absorbs the requirements as stipulated in the “Tort Law” and the “E-commerce Law”, and states the principle of “safe harbor” shall require requisite measures as “notification – necessary measures” in the legislation level of a code.

From the perspective of judicial practice, the “safe harbor” principle becomes weaker and weaker.

First, the effectiveness of defect notification is gradually accepted by different courts.

In 2012, in the case of copyright infringement dispute among Zhejiang Fanya E-commerce Co., Ltd., Beijing Baidu Netcom Technology Co., Ltd. and Baidu Online Network Technology (Beijing) Co., Ltd. the Supreme People’s Court held that, “As the copyright owner, Fanya knows its works best and has the best conditions to provide appropriate information for the search engine service providers, then the providers could block allegedly infringing links more accurately. In the attorney’s letter, Fanya did not provide the singer’s name, it would be very difficult for the providers to search the accurate song only via the song’s name, so the plaintiff shall take the consequence caused by the defendant’s failure to take reasonable measures to disconnect the allegedly infringing link in time. Therefore, at that time, the courts held that the premise for the provider to perform the obligation of “notification – deletion” was that the obligee should provide a relatively accurate infringement link, and the content of the notification should be clear and specific.

However, in 2021, in the case of information network transmission right infringement dispute, Beijing Iqiyi Technology Co., Ltd. V. Beijing ByteDance Technology Co., Ltd., regarding the series of “The Story of Yanxi Palace” (延禧攻略), Iqiyi sent more than 20 warning letters and attorney’s letters to ByteDance, informing the ownership of the rights of the series, the broadcasting platform, the broadcasting plan, etc. The Beijing court held that Iqiyi could not require ByteDance to delete all allegedly infringing short videos based on those letters, however, ByteDance as a professional short video platform operator, it should also pay reasonable and necessary attention to the allegedly infringement, and take relevant measures to stop or control the negative consequences, instead of ignore those letters.

Second, requisite measures have added the filtering and interception in advance to the original measures which are deletion and shielding afterwards, which means those measures shall have substantive function.

In 2013, in the case of copyright infringement dispute among Guangdong Zhongkai Intellectual Property Service Co., Ltd., Lingyuan Information Network Management Center and Lingyuan Municipal Party Committee Office of the Communist Party of China, the Supreme People’s Court held that, “Zhongkai did not provide evidence to prove that Lingyuan Information Center continuously provides search or link services to the allegedly infringing website after it knew or should have known such website had infringement behaviors. After Zhongkai sent a claim letter, Lingyuan Information Center disconnected the link with the allegedly infringing website promptly, so Lingyuan Information Center does not have to bear tort liability.”

In 2014, in the case of copyright ownership and infringement dispute related to Beijing Zhongqingwen Books Co., Ltd. and etc., the Beijing High People’s Court clearly pointed out that, “The network service provider did not have the resource to identify whether the claimed book is a best seller, even if it knows that the book is a best seller, if it is required to prohibit or filter the book by key words based on limited information, it would hinder the reasonable dissemination of information, which counts against the exchange and sharing of information.

However, in 2021, in the case of the interim injunction regarding the copyright dispute among Shenzhen Tencent computer system Co., Ltd., Tencent Technology (Beijing) Co., Ltd., Chongqing Tencent Information Technology Co., Ltd., Beijing Weibo Vision Technology Co., Ltd. and Chongqing Tianji Meike Technology Co., Ltd., the Chongqing Intermediate People’s Court required Beijing Weibo company to immediately take effective measures to delete all videos in Tiktok app which infringed the information network transmission right of “Dou Luo Da Lu”(《斗罗大陆》), and immediately take effective measures to filter and intercept users’ uploading and transmitting those videos.

Coincidentally, in the aforementioned “The Story of Yanxi Palace” (延禧攻略) case, the court held that, “Bytedance should have known that users infringed the information network communication right of this work by using the information storage space and information flow recommendation service via Toutiao app, and it had taken measures, such as deletion, shielding and etc., which met the formal requirements regarding the requisite measures, however, in view of the actual consequences, those measures failed to stop or prevent infringement effectively, so those measures were not requisite enough.”

With the development of technology, the “safe harbor” for internet platform seems to be disappearing. In addition to deleting, blocking and disconnecting links, network service providers are assuming more obligations of active review, filtering and interception.