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His father's "entry" was amended
The defendant has audit faultThe plaintiff, Zhao Moumou, complained that in January and June 2013, Baidu users edited the entries of his father's Baidu Encyclopedia twice, added the phrase that his father was a "literary thief" and deleted the opera script "Red Coral" from his father's representative works. The aforementioned behavior of adding insulting words was examined and released by Baidu Encyclopedia and retained until July 2018; the father's representative's work has not been restored. Zhao Mou-mou believes that the act infringes on the reputation of his father and his family. Baidu Company has made a mistake in examining the entry editors, and should assume legal liabilities such as stopping infringement, restoring the status quo, apologizing for compensation, and compensating for losses. At the same time, Zhao Mou-mou believes that some of the contents of "rights statement" and "disclaimer" in "Baidu Encyclopedia" user agreements shirk legal obligations and compress the space for safeguarding rights, so he appeals to change or revoke the relevant provisions of the above user agreements.
Has fulfilled the obligation of "notice-deletion"
It has no obligation to review in advance.The defendant Baidu Company argues: First, whether the plaintiff has an independent right of action. In addition to Zhao, it is not known whether his father's other close relatives have authorized Zhao or explicitly waived the right to participate in the lawsuit and obtain benefits. Second, Baidu Company has fulfilled its legal obligations and should not assume legal responsibilities. As a network service provider, Baidu Company has fulfilled its obligation of "notification-deletion". (2) Baidu Company is not the publisher and provider of the articles in question. It does not know or have the ability to know in advance that the articles in question exist in the network products involved. The existing law does not subject the network service providers to prior review obligations. (3) As a network service provider, Baidu has fulfilled its legal obligations of pre-warning and post-supervision. (4) Baidu Company has provided registration information for Baidu users involved in the case to the court according to law.
Main controversial focus
1. Is Zhao Mou-mou entitled to bring a lawsuit in this case?
2. Whether the reputation of Zhao Mou's father has been damaged
3. Does Baidu Company Form Infringement
4. Civil Liability of Baidu Company
The gist of the referee
1. Zhao Mou-mou has the right to initiate this lawsuit.
Our country's laws and judicial interpretations clearly endow the deceased's close relatives with the right to bring a lawsuit for infringement of the right of reputation. Negative social evaluation of the deceased not only infringes on the deceased's reputation, but also affects the overall reputation and personal reputation of the deceased's close relatives. Any close relative of the deceased shall have the right and at the same time be liable for infringing upon his own reputation on the basis of his close relatives'status.
2. The reputation of Zhao Mou's father has been damaged
Baidu users involved in the case cover up the author's behavior of Zhao Mou's paternal opera Red Coral by deleting entries, which will affect Internet users'real and comprehensive understanding of his father's life and his representative works, and to a certain extent result in his father's lower social evaluation. Based on the openness of Baidu Encyclopedia, the above-mentioned content has been displayed to non-specific Internet users for five years, which has seriously damaged the reputation of Zhao Mou's father.
3. Baidu Company constitutes infringement
When Baidu Company can know that network users use their network services to infringe on the civil rights and interests of others, it fails to take necessary measures, fails to fulfill the management obligations of network service providers, and should bear civil tort liability to Zhao Mou-mou.
(1) Information Disclosure of Network Service Providers
Baidu Company has disclosed the registration information of Baidu users involved in the case to the court. When the account was registered, the Internet information service providers were not required to authenticate their names when they registered with the network users. Baidu Company has no fault in failing to provide such information as the user's name, identity card number and so on. The court did not support Zhao's request that Baidu continue to provide the above information to him.
(2) Baidu Company's Audit Obligations
Zhao Momou notified Baidu Company after discovering infringement, and Baidu Company deleted it after auditing. The core focus of the dispute between the two sides is whether Baidu should audit the infringement before deleting the infringement words.
1. There is a risk of infringement in the process of knowledge sharing and opinion expression that users create and edit entries. As the administrator of Baidu Encyclopedia, Baidu Company should have the awareness of preventing the above risks, and should take necessary and reasonable measures to regulate them according to its ability. Especially for the editing of character entries, because it involves the evaluation of characters and the operation mechanism that everyone can edit, it is easy to express subjectively, emotionally and specifically. Therefore, Baidu's supervision of Baidu Encyclopedia's character entry editors undoubtedly needs to be enhanced.
2. Baidu Company has never provided the court with the user agreement and editing rules applicable to Baidu users'editing of the relevant articles. It should bear the consequence of the failure of proof. In this case, Baidu users involved in the case edited the entries twice, without providing any reference materials, and the reasons for the revision lacked objective basis, but they all passed in a short time. It shows that Baidu Company has not taken effective measures to prevent and control the risks of character entry editing.
4. Civil Liability of Baidu Company
Baidu Company has not effectively stopped the occurrence of infringement, it should compensate Zhao Mou for a spiritual damage consolation, and apologize to him publicly. The representative work Red Coral has been restored. The basic facts of the claim for restoring the content of the entry no longer exist, and the claim is not valid. The plaintiff requests Baidu Company to change or revoke the clauses and disclaimers that are not legally valid in its user agreement, which is not the same legal relationship as the infringement action in this case and should be rejected.
V. Social Responsibility of Network Encyclopedia ManagersThe network encyclopedia represented by Baidu Encyclopedia has gradually grown into one of the information access channels that the society relies on, presenting the attributes of social public interest, and should put forward higher requirements for the construction of Internet content. Baidu Company shall not expand the exemption content without restriction in order to reduce the operational risk. It has the responsibility to make full use of Internet technology to improve the logical judgment and operation ability of the audit system, supplemented by enhanced manual audit, and to create a clean network space, so that network encyclopedia products can truly serve the society and serve the Internet development. Exhibition.
Judgment result of first instance
Court Judgment: Baidu Company publicly issued an apology announcement in the prominent position of the involved entry page, apologizing to Zhao Mou-mou for compensation, eliminating the impact and compensating Zhao Mou-mou for mental damage consolation of 6 yuan.
Cyberencyclopedia not only provides information storage space for Internet users, but also actively audits the authenticity, objectivity and authority of entries based on the risk of entries infringement and the trust of network users.