BBS Operator not Liable for Defamation but Not Without Obligation

Professor Cai who publicly called for cancellation of the so-called Golden Week (week-long public holidays) in China found himself defamed and cursed by a large number of people on a BBS named after him. The furious Professor sued the BBS service provider, Baidu (one of the largest Internet company in China), for defamation. The first-instance court recently rendered the decision that Baidu was not the direct tortfeasor, neither did it knowing providing service to defame Prof. Cai. The court noted that Baidu’s act of taking timely measures to prevent the further spread of defamatory information after receiving valid notification from Prof. Cai was capable of proving its innocent. Interestingly, the court dismissed Prof. Cai’s claim for deleting the relevant BBS in the same name as him, because name of the BBS, per se, was not infringing and the people had the right to make comments on public issues or figures. However, the court ruled that Baidu must, within the capable of network technology, assume the obligation of a honest manage to identify its subscribers who had posted the defamatory information. Prof. Cai’s agent declared to appeal against the decision.

The decision rings the alarm for Internet users. With the implementation of the Tort Liability Law, netizens are exposed to more liabilities for infringement against civil rights. Previously, they were only subject to copyright enforcement. Now they must watch out any other rights, such as rights for reputation, honor, portraits and names. A service provider’s obligation to disclose users’ identities would have serious impact on privacy. In the above-mentioned case, the court demanded Baidu to identify all the persons who had cursed, insulted or verbally threatened Prof. Cai. However, how would Baidu judge if a post is insulting, defamatory or threatening? What if Baidu makes arbitrary judgment and unreasonably disclose some users’ personal information to Prof. Cai?

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