The knowledge standard for the Internet Intermediary Liability in China

After the Chinese Tort Liability Law was enacted in 2010, many discussions focus on the liability regime of internet intermediary service providers for illegal content on the internet under the Internet Clause. An online intermediary shall bear joint civil liability with the internet user when it knew that the internet user was taking advantage of its service to commit a tortuous act on its system, but failed to take action to stop that unlawful activity. The main controversy is what standard the court should adopt when examining an online intermediary’ knowledge of the disputed content. There is a critical interplay between the level of knowledge possessed by service providers and the amount of monitoring and removal demanded of service providers to avoid any kind of liabilities for users’ misconducts. This article will start from an introduction of various opinions on the knowledge standard, and then will review the approach adopted in statutory provisions and case decisions before the Chinese Tort Liability Law came into force. Finally, by clarifying the meanings of related legal terms and analysing the knowledge standard under the United States Digital Millennium Copyright Act, I tend to propose a reasonable interpretation of the knowledge standard for the Internet Intermediary Liability in China.