Beijing Internet Court Civil Judgment(2018) Jing 0491 Min Chu No. 2386
Wu Yongning, known for scaling skyscrapers without safety equipment to snap astonishing selfies, died in November 2017 after falling off a 62-story building in Changsha, Hunan province. A video of the 26-year-old's accidental fall went viral online about a month later.
Huajiao, a popular live streaming platform in China, was liable in tort. It failed to fulfill its duty of safety protection. According to Beijing Internet Court, a network service provider has certain security obligations due to net-users in virtual cyberspace.
What's more, Huajiao platform is profit-making and shared the money earned by Wu from live streaming. The business cooperation between Wu and Huajiao played a certain role in promoting Wu's continuous dangerous stunts, it added.
Here is the case judgement by Beijing Internet Court:
Beijing Internet Court
(2018) Jing 0491 Min Chu No. 2386
Plaintiff: He Xiaofei, female, born on February 24, 1970, ethnic Han, unemployed, residing at No. 13, Bamutang Group, Junli Village, Nantianping Township, Ningxiang County, Hunan Province.
Guardian: Zhou Yunxin, male, born on October 5, 1962, ethnic Han, unemployed, residing at No. 3, the 7th Group, Xifu Village, Nantianping Township, Ningxiang County, Hunan Province.
Agent ad litem: Li Tiehua, lawyer of Hunan B·M Law Firm.
Agent ad litem: Lu Xiaocong, lawyer of Hunan B·M Law Firm.
Defendant: Beijing MijingHefeng Technology Co., Ltd., with its domicile at 1701-48A, Floor 15 & 17, Building 3, No. A10 Jiuxianqiao Road, Chaoyang District, Beijing.
Legal representative: Zhang Peng, board chairman.
Agent ad litem: Zhang Xiao, female, born on August 3, 1987, ethnic Han, employee of Beijing MijingHefeng Technology Co., Ltd., residing at 1701-48A, Floor 15 & 17, Building 3, No. A10 Jiuxianqiao Road, Chaoyang District, Beijing.
After accepting the case by which the plaintiff He Xiaofei sues the defendant Beijing MijingHefeng Technology Co., Ltd. over tort liability dispute, the Court carried out a public trial as per the ordinary procedure in accordance with the laws. Agent ad litem Li Tiehua of the plaintiff He Xiaofei and agent ad litem Zhang Xiao of the defendant Beijing MijingHefeng Technology Co., Ltd appeared in court to participate in the legal action. The trial of case is now concluded.
The plaintiff He Xiaofeiprays to the Court to: 1. order the defendant to compensate the plaintiff a total of RMB 60,000;2. order the defendant to apologize to the plaintiff;and 3. order the defendant to bear all litigation costs. Facts and grounds: Wu Yongning, an outsiderin this case, once worked as an actor in Zhejiang Hengdian World Studios. From 2017, he started to upload a large number of videos of dangerous actions, like climbing skyscrapers with his bare hands, on Huajiao Live Streaming, a network platform subordinated to the defendant, and other major mainstream network platforms. As a result, he had over a million fans and his videos released on major network platforms received more than 300 million views, making him an online celebrity.
On November 8, 2017, Wu Yongning accidentally plunged to his death while climbing Huayuan International Center in Changsha. The accident was laterecovered by several news media.
The defendant, knowing perfectly well thatvideos released by Wu Yongning were shot at the risk of his life and that fatal accidents might happen during the shooting process, still encouraged and prompted Wu to proceed with his behaviors rather than warning and stopping him, for the purpose of improving the popularity, reputation, user participation and activeness of its network platform to gain more benefits. In essence, the defendant was trying to obtain greater self-interests at the cost of Wu Yongning's life risks. While the defendant should not approve those videos of dangerous actions released by Wu Yongning and shouldinstead take necessary measures such as deleting, blocking and disconnecting the videos, it failed to fulfill such obligations. The defendant’s act has violated Wu Yongning's rights and interests. According to Article 36 of the Tort Liability Law of the People's Republic of China (hereinafter referred to as the “Tort Liability Law”), a network user or network service provider who infringes upon the civil right or interest of others through network shall assume the tort liability.
Huajiao Live Streaming subordinated to the defendant, being a public and open network platform and cyberspace widely known, widely used and widely concerned by the public, shall bea public place in nature.The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases like Defamation by Using Information Networkshas incorporated cyberspace into public places.In judicial practice, the (2017) Hu 0115 Xing Chu No.183 Judgement of Shanghai Pudong New Area People's Court and several other judgmentshave also recognized cyberspace as a public place.Article 37 of the Tort Liability Law stipulates that the manager of a public place such as hotel, shopping mall, bank, railway station, or entertainment placeor the organizer of a mass activity shall assume the tort liability for any harm caused to another person as the result of his failure to fulfill the obligation of safety protection.The defendant, as the manager of the public cyberspace—a public place,failed to fulfill its obligation of safety warning and safety protection towards Wu Yongning, resulting in his accidental death in the process of shooting a video of dangerous actionsfor release on Haojiao Live Streaming.In addition, Wu was still in the contract period with Huajiao Live Streaming when he fell to his death. He climbed Huayuan International in Changsha precisely in order to complete the tasks stipulated in the contract. The defendant directly prompted and thus has a causal relationship with Wu’s death.It is because the defendant encouraged and promoted Wu Yongning's behavior rather than performingits duty of reasonable review and supervision that Wu Yongningcontinued to shoot and release videos of dangerous actions. Therefore, the defendant is at fault for Wu Yongning's continued adventurous behavior.There is also a causal relationship between Wu’s death in the process of shooting a video of dangerous actions as usual for release online and the defendant's failure to fulfill its duty of supervision and safety protection towards Wu Yongning. Therefore, the defendant should assume the tort liability for Wu Yongning's death.
The defendant Beijing MijingHefeng Technology Co., Ltd. argues that: 1. Huajiao Live Streaming’s act of providing information storage space does not constitute tort. Article 36 of the Tort Liability Law stipulates that“a network service provider who infringes upon the civil right or interest of others through network shall assume the tort liability”. As far as personal rightsare concerned,only acts like insulting or slandering others in the virtual cyberspacewhich infringe upon others’ reputation right would have the possibility of infringing upon personal rights, given the virtuality of the cyberspace. Article 37 of the Tort Liability Law and the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases like Defamation by Using Information Networksdefine the responsibilities of managers of public places in the real world, not in the virtual cyberspace. Moreover,the Interpretation is only applicable to criminal cases. Huajiao Live Streaming’sact of providing information storage space does not have the possibility of infringing upon Wu Yongning's personal rights in the real world andthus does not constitute a tort.2. Videos uploaded by Wu Yongningcontain no contents prohibited by laws and regulations, thus the defendant has no statutory obligation to deal with them andnot dealing with it is not illegal. Wu Yongning himself applied for and used the account number 131200707 on Huajiao Live Streaming and spontaneously uploaded the videos in the account number. Asa network service operator providing information storage space service, the defendant only has the obligation to review and deal with the information released in the account that violates laws and regulations and infringes upon the interests of the state, the society and third parties. As Wu Yongningonly recorded his extreme challenges in videos and uploaded them,neither his behavior northe contents of the videos are illegal or infringe the interests of the state, the society and third parties.Thusthe defendant has no statuary obligation or legitimateground to delete, block or disconnect the relevant links. The defendant's failure to deal with the videos uploaded by Wu Yongning is not illegal and does not constitutea tort. 3. The cooperation between the defendant and Wu Yongning onpromotingthe new version of Huajiao Live Streaming software is not an act of harm. The defendant is the main body of a company established for profit according to the laws. Its business activities, including the promotion of new versions of products, not violating laws and administrative regulations or harming social morality and good faith, should not be negated by law because of its for-profit nature. The defendant did not commit any illegalact of harmduring the specific promotion cooperation. The cooperation was based on the background that Wu Yongning hadbecome an online celebrity after successfully completed a large number of challenges. The defendant did not make any requirement on the time, place and actions Wu Yongning chose or instruct him to do any challenge projects beyond his ability or he was not good at. Neither did the defendant require him not to take protective measures. All specific details were chosen and arranged by Wu Yongning himself. 4. The above-mentioned acts of the defendant has no legal causal relationship with Wu Yongning's death. On the one hand, according to the evidence provided by the plaintiff, Wu Yongning died because he accidentally fell when climbing on the top of the building without any protective measures. Wu was able to recognize the danger of extreme challenges, but still choseconditions and actions beyond his ability for the challenge and did not take necessary protective measures, leading to his accidental fall and death. The defendant did not participate in his challenge,thus there is no casual relationship. On the other hand, judging from the social experience of ordinary people, there may be various purposes fordoing extreme challenges, either for remuneration or stimulation or attention of others or a combination thereof. It is legally impossible to conclude that Wu Yongning did extreme challenges for remuneration.Even without the above acts of the defendant, there is no way to stop Wu from continuing to do extreme challenges and avoid the accidental fall and death.Therefore, the defendant's actshas no legal causal relationship with Wu’s death. 5. The defendant's aforesaid acts constitute no subjective fault of tort. First, Wu Yongning uploaded the videos spontaneously, and the defendant, as a network service operator, provided information storage space service. The contents of Wu Yongning's videoswere not illegal, so the defendant did not deal with them. The defendant has no subjective fault in this respect. Second, as we all know, extreme challenge is to show one's ability by challenging what ordinary people cannot do. Its own nature determines its danger. The defendant's abstract understanding of this attribute does not mean its subjective fault of tort against Wu Yongning. As far as Wu Yongning is concerned, he started to conduct a large number of extreme challenges from 2017 and became famous and respected by the public for his repeated successes. Against this background, the defendant has no fault for believing that Wu Yongning had a certain ability to challenge the limits and was good at certain challengeprojects. It’s not that the defendant asked or allowed Wu Yongning to do those challengeswhen it is or should be aware that he did not have the ability.Sothere is no subjective fault in this sense. Third, as a person with full capacity for civil conduct, subjectively, Wu Yongning could realize the innate danger of the extreme challenge and that different objective conditions such as the time, weather and venue he chose, and different actions he did, would have different degrees of danger. Objectively, Wu Yongning could chooseconditions and actions that matched his abilities. The defendant did not participate in it or make any request or interference. It’s not that the defendant is or should be aware of Wu Yongning's mistake yet still asked or allowed him to challenge.Thus the defendant also has no subjective fault in this sense. To sum up, the defendant only provided information storage service forvideos uploaded by Wu Yongning. It has no statutory obligation to and thus did not deal with them when the contents were not illegal. The defendant did not require Wu Yongning to do any act endangering his safety, thus has no legal causal relationship withhis death.The defendant has no subjective fault of tort and shall thus not assume any tort liability.
The Court has through trial found the following facts: Wu Yongning,the only child of the plaintiff He Xiaofei, was born on April 10, 1991.The plaintiff He Xiaofei and Feng Fushan, an outsider in this case, registered their marriage on September 10, 2013 and have not given birth to any childafter the marriage. Feng Fushanis Wu Yongning's stepfather.An entry of “Wu Yongning” on Baidu Encyclopedia says that“Wu Yongning, with the same name on Weibo, ethnic Han, was China’s firstrooftopper. He came from Changsha of Hunan province and once worked as a figurant and stuntman in Hengdian. Later, he devoted himself to shooting short videosabout his outdoor extreme challenges.In his extreme sports career, he successfully challenged skyscrapers and bridges in cities like Wuhan, Nanjing, Chongqing, and Changsha.On November 8, 2017, Wu Yongningplunged to his death when performing in Tianxin District of Changsha due to a mistake. The death was later confirmed by the police."
HuajiaoLiveStreamingPlatform (hereinafter referred to as “HuajiaoPlatform”) is a video live streaming platform owned and operated by the defendant Beijing MijingHefengTechnology Co., Ltd.On July 25, 2017, Wu Yongning registered the account number 131200707 onHuajiao Live Streaming.The account was then banned by the defendant on December 12, 2017 and cannot be logged onto, thus the plaintiff is unable to provide relevant information and contents of the account.During the litigation, the defendant acquired the relevant information of and the video contents in the account upon the request of the Court.According to the account information submitted by the plaintiff, Wu Yongning had 9,618 followers on the above account, and the account received donations of RMB 170.7 from followers, including RMB 36.3for short videos, RMB 0.5 for live streaming and RMB 133.9 for donation of gifts through private messages.During the trial, according to the defendant's statement, the reward Wu Yongningreceived from fans were distributed proportionally between Huajiao Platform and Wu Yongning.
Videos retrieved by the defendant show that Wu Yongning uploaded a total of 154 videos from July 27, 2017 to November 1, 2017.Among them, the first two batches of uploaded videos were shot when Wu was a figurant in Hengdian while most of the rest videos were about him climbing various skyscrapers such as office buildings, iron towers and chimneys or performingstunts such as walking, jumping, overturning and hanging himself in midair at the top or edge of the above skyscrapers.As to whether there are any safety tips in the above videos, the defendant replied in writing to the Court that“94 out of the 154 videos have tips like‘Dangerous actions! Do not imitate if untrained!’ or ‘Dangerous actions!Do not imitate!’added by Wu Yongning himself when uploading the short videos. These words were displayed when the short videos were played.”As to whether the defendant reviewed the above videos, the defendant replied in writing to the Court that “It did review the videosthrough screenshots of video images. The reviewer would have about 10 videos displayed simultaneously on the computer screen and have several screenshots taken from each video."However, the defendant did not submit the corresponding proof.
It has also been found that Wu Yongning also uploaded videos of such dangerous actions on other video streaming platforms likeVolcano, Milk Candy and Connotative Jokes as well as Sina Weibo.The plaintifffiled similar lawsuits to the Court againsttheir operatorsbased on the same cause of action.
On September 12, 2017, the defendant invited Wu Yongning to promote Version 6.0 of itsHuajiaoLive Streaming platform.Regarding the specific arrangement and agreement of the promotion activity, the defendant contends that it is unable to learn about the specific situation back then as the employee who was originally responsible for the matter had left office.Both the plaintiff and the defendant fail to submit to the Court the video shot for the promotion activity, but the plaintiff submitted to the Court a copy of the promotion plan to prove the specific content of the promotion activity.The copy says that“Congratulations to Yongning, trainee of [Southeast Durian], on becoming the firstXsportsambassador of HuajiaoLive Streaming 6.0 on behalf of the company![Superstar] will always make unremitting efforts to produce superstars! Time:3:00 p.m. to 4:00 p.m. September 12. 1. The host of HuajiaoLive Streaming Product Launch event connects actor Yongning on the spot. Yongning shows his face first and says hi. The host asks what Yongningis doing.2. Yongning greets the audience and tells them that he has prepared an exciting gift to celebrate the official launch of Huajiao 6.0.3. Zoom out the camera to show the audience that Yongningis on the roof of a building. He hands his cellphone to his companions and shows words like ‘Huajiao 6.0 has been launched’ pasted on the stairs of the building (both inside and outside the stairs) in advance. Then he startsto dostunts that he isgood at. He hangs himself on the stairs and does 1-2 actions at the same time, while the words ‘Huajiao 6.0’are shown all the way.4. After finishing, he goes back to the inside of the stairs and speaks to the camera: isn’t that exciting!If you want more excitement, come to Huajiao 6.0 and followme-Yongning!5. The host expresses thanks.”
The defendant states that Wu Yongning had gained certain popularity as major platforms covered and released his videos of doing outdoor challenges.Given that, the defendant got in touch with Wu Yongning through Zhang Rongyao,an outsider in this case, for cooperation in the above promotion activity, and paid Wu RMB 2,000 as the reward through Zhang Rongyao.
The Court has found that Zhang Rongyao is the legal representative of Beijing Southeast Durian Film and Television Culture Media Co., Ltd but could not find the company at its registered place of operation at 7 Yuanying Road, Zhaofeng Industrial Base, Zhaoquanying Town, Shunyi District, Beijing. The property management company of Zhaofeng Industrial Base said that the company does not work there.Later, the Court got in touch with Zhang Rongyao by phone and the facts stated thereby are basically consistent with what the defendant has said. Zhang has no idea about the specific contents of the promotional video shot by Wu Yongning at that time.Zhang Rongyao also stated to the Court that Wu Yongningdid not earn much as a figurant and that he was hard up for money and hoped to succeed in extremechallenges.
On November 8, 2017, Wu Yongning accidentally plunged to his death while climbing Changsha Huayuan International Center (the seat of Grand Hyatt Hotel) to shoot a videoof dangerous actions.On November 14, 2017, He Xiaofei and Changsha Branch of Beijing Sunrise Property Services Co., Ltd., the property management company of the building, reached a people's mediation agreement, which states “Main facts and Matters in Disputes” as follows: At about 6:00 a.m. on November 9, 2017, a worker of Huayuan International Center found a young man lying near the door of No.2 fire escape on the top floor. Rescuers of 120 AmbulanceServicesarriving at the scene found him already dead.Investigation conducted by relevant public security organ shows that the name of the deceased is Wu Yongning. ... According tosurveillance video, Wu entered the building alone at about 12: 20 on November 8, 2017.Without permission, he followed others to the 45th floor by elevator. At about 12:43, he started to walk from the 45th floor to the top floor through the fire escape.At about 12:57, he climbed to the parapet wall from the stairs south of the top floor of Huayuan International Center, about todo extreme sports.The video recorded by a camera at the south of the top floor shows that at about 15:00 on November 8, Wu Yongnin,already injured, had climbed from the falling position to the nearby of the door of No.2 fire escape and fell down there. Forensic examination by the public security organ ruled out the possibility of homicide, concluding that his death was an accident and had no connection with other parties.Site investigation of the falling place at Huayuan International Center in Shangsha and conversation with relevant property management personnel have confirmed that the process of Wu Yongning’s fall and death is consistent with the above description. The court also went to Tianxin Branch of Changsha Public Security Bureau to obtain relevant materials about Wu Yongning's death and got a record of inquiry on the statement of Luo Jiangxian, an outsider in this case, about the process of finding Wu Yongning's death.The record reads as follows: "... Q: What is your occupation?A: I am engaged in decoration. I am now responsible for replacing the glassof Grand Hyatt Hotel at West Jiefang Road, Tianxin District, Changsha.Q: Why do you come here today?A: Ifound a body on the top floor, F62, of Grand Hyatt when working there. so Icome here to assist in the investigation.Q: Can you tell us the details of the incident?A: At about 06: 00 on November 9, 2017, I went to the top floor of Grand Hyatt Hotel to installcables. There I found a man with blood lying at the door of anescapeway on the top floor. I immediately informed the security personnel ofGrand Hyatt Hotel. Before long, the police of your station and doctors of 120 Ambulance Services came.And then the police took me here to assist in the investigation.……”
On November 15, 2017, Wu Yongning's body was cremated at Changsha Mingyangshan Funeral Home and a cremation certificate was issued thereby, stating that: “This is to certify that the deceased, Wu Yongning, male, 26 years old, was cremated in our funeral home on November 15, 2017.”
On December 12, 2017, the defendant, without the application of Wu Yongning's family, permanently banned Wu Yongning's account on HuajiaoLive Streaming platform.The plaintiff submitted to the Court the login screenshot of the above account, which says “Sorry, it seems Brother Jiao has seen through your little tricks and banned your account.~ Reason for the ban: (131200707) your public information and posts were banned due to violation of regulations.Duration for the ban: permanent.”Regarding the reasons for the ban, the defendant explains that“the platform banned it because there were a lot of reports and hypes after Wu Yongning's death.”
The Court has also found the following: Wu Yongning's mother, He Xiaofei, with a Grade 3 mental disability, has no work ability andno other source of income.The plaintiff submitted to the Court a certificate issued by Hengtianwan Villagers Committee of Batang Town, Ningxiang, the household registration location of HeXiaofei, Feng Fushan, and Wu Yongning. The certificate bears the relevant identity information of the three persons and states that “Wu Yongning was the only son of HeXiaofei and Feng Fushan.He Xiaofei, with a Grade 3 mental disability, has no work ability and no other source of income.Feng Fushan is a poor peasant with low income, which is not enough to support He Xiaofei.He Xiaofei was previously raised by her son Wu Yongning and has no other children.” The signing placebears the seal of the VillagersCommittee and the signature of Zhou Yunxin, the guardian of HeXiaofei.The plaintiff also submitted to the Court another certificate issued by the same Villagers Committee, which states that“Wu Yongning, male, ethnic Han, was born on April 10, 1991.…… His native place wasthe 10thGroup, Xifu Village, Nantianping Township, Ningxian County, Hunan Province.Wu Yongning had been working and living in the city continuously for several years (at least from 2015)”.The signing place also bears the seal of the Villagers Committee and the signature of Zhou Yunxin.
It has also been found that the per capita disposable income of urban residents in Beijing is RMB 67,990 per year in 2018, the average monthly salary of Beijing employees is RMB 8,467 in 2017, and the per capita consumption expenditure in rural BeijingisRMB 20,195 per year.
The above facts are supported by the information summary of HuajiaoLive Streaming platform, the contents of videos on HuajiaoLive Streaming platform, the video of Wu Yongning’s fall, the record of inquiry fromTianxin Branch of Changsha Public Security Bureau, the cremation certificate, the mental disability certificate, the certificate of dependant, and the one-child certificate provided by the litigants and the statements of the litigants.
The Court holds that Wu Yongning, an outsiderin this case, registered for the Huajiao account and uploaded videos of dangerous actions to HuajiaoPlatform, making hima network user of the platform. The defendant, as the operator of Huajiao platform, is a network service provider.Wu Yongning's death during the shooting of a video of dangerous action was the damage result involved in this case.The plaintiff thinks that the defendant did not fulfill its obligation of safety protection and, as the network service provider, violated Wu Yongning's right to life through network. Therefore, the focus of the dispute in this case is: first,doesnetwork service providers need to assume the obligation of safety protectiontowards network users;second, whether the defendant committedtort; andthree, if the defendant did commit tort, how to determine the specific liability to be borne by the defendant.These three points are respectively analyzed as follows:
First, whether network service providers should assume the obligation of safety protection towards network users?
Paragraph 1, Article 36 of the Tort Liability Law stipulates that a network user or network service provider who infringes upon the civil right or interest of others through network shall assume the tort liability, pointing out the liability for network tort. Article 37 of the Tort Liability Law stipulates that the manager of a public place such as hotel, shopping mall, bank, railway station, or entertainment place or the organizer of a mass activity shall assume the tort liability for any harm caused to another person as the result of his failure to fulfill the obligation of safety protection, pointing out the obligation and responsibility of safety protection.It is generally believed that the tort liability of network service providers is aimed at intellectual property rights, personality rights and other rights, while the protection object of safety protection obligation is person (life, body, health and freedom) and tangible property.With the development of network information technology, people conduct lots of activities including work, study, social contact, entertainment, shopping etc.in thecyberspace, and usually through a certaininternet platform.The cyberspace, with the innate characteristics of openness, interconnection, intercommunication and sharing, is also a public space or has mass activities. This provides the possibility of not only tort of intellectual property and personality but also tort of person and tangible property. The relationship between the two liabilities is also reflected at the national legislation level. For example, Paragraph 2, Article 38of the E-Commerce Law coming into force in 2019 stipulates that for goods or services of vital importance to the life and health of consumers, e-commerce platform operators shall bear corresponding liabilities in accordance with the law fordamages of consumers as a result of their failure to examine the qualifications of in-platform businessesand failure to fulfill their obligation of safety protection towards consumers.In judicial practice, the (2008) Chao Min Chu Zi No.10930 case tried by Beijing Chaoyang District People's Court, the country’s first cyber manhunt case, arose from the harassment of a specific person and his family and residence bynetizens based on information postedin ablog. Preventing such dangers is also a kind of safety protection.As the manager, operator and organizer of the cyberspace, network service providers have certain safety protection obligation towards network users under certain circumstances.
Therefore, in real life, network service providers may be liable for network tort due to their failure to fulfill their obligation of safety protection.However, it should be pointed out that the specific contents of the safety protection obligation in the cyberspace is different from those in traditional physical space.Due to the virtuality of the cyberspace, we cannot require network service providers to take safety protection measures required in the case of physical space.Under the condition of the cyberspace, the measures taken by network service providers should first conform to the characteristics of the cyberspace itself and secondly fall in the capabilities of network service providers. Therefore, the contents of safety protection obligation of network service providers should generally only include measures likereview, notification, deletion, block, disconnection etc.
Second, whether the defendant committed tort?
(I) Whether the defendant has the obligation of safety protection towards Wu Yongning?
The defendant is the network service provider of information storage space, and itsHuajiao Live Streaming platform is the concrete manifestation of public places in the cyberspace.With the registration and use open to the public and the unspecific participants, the platformrepresents a virtual space with social activities.Netizens can browse, publish, comment on, forward, and like all kinds of videos, pictures and words in this cyberspace. The behaviors among netizens are interactive, public, and of a mass character.Therefore, the platform has the social attribute of a public place. As a result, the defendant, as the operator of the platform, may become the civil subject who bears the obligation of safety protection.The for-profit Huajiao Live Streaming platform has a process operation mode of user registration, video uploading by users, donation by fans, and proceeds sharing betweenthe platform and users uploading videos. According to the above-mentioned facts, the defendant did share the donation proceeds with Wu Yongning. Therefore, according to the principle that proceeds should be proportional to risks, the defendant should bear the corresponding safety protection obligation.Secondly, the defendant, as the provider and manager of network services, has certain control over network activities. Therefore, it should somehow be able to discover and control the videos of dangerous actions uploaded by Wu Yongning under certain circumstances and to predict the harmful consequences caused by these videos. Therefore, the defendant should also assume corresponding obligation of care even based on the requirements of the risk control theory.To sum up, the defendant has the obligation to protect the safety of Wu Yongning.
As to the specific contents of the safety protection obligation the defendant bears towards Wu Yongning, the defendant should first reviewthe contents of videos uploaded by Wu, which may then result in other specific obligations like deletion, blocking, disconnection etc.The difference between the contents of these obligations and those of traditional safety protection obligation is determined by the special nature of the virtualcyberspace.The defendant's review of videos uploaded by Wu Yongning is the necessary measure that the defendant should take to discover safety risks.But at the same time, it should be pointed out that the defendant's obligation of review should bepassive review, rather than active review,which it conducts when it is or should be aware of the possible danger of the videos uploaded by Wu and possible risks caused thereby. That’s because a full review of massive uploaded contents, even technically feasible, will undoubtedly greatly increase the operating costs of network service providers, which may further hinder the development of the industry and sacrifice the overall welfare of the society.
In this case, according to the ascertained facts, the defendant invited Wu Yongningto do a promotion activity, knowing that Wu was engaged in relevant dangerous and risky activities and had a certain reputation. It can be inferred that the defendant knew perfectly well that videos uploaded by Wu Yongning might contain dangerous contents and that Wu may risk his life to shoot these videos. Therefore, the defendant should review these videos and take measures such as deleting, blocking and disconnecting the videos after finding risks.During the defense, the defendant argued that it has no statutory obligation to deal with videos uploaded by Wu Yongning as theycontain no contents prohibited by laws and regulations and that not dealing with them is not illegal. Italso cited relevant laws and regulations to prove its view.The Court holds that even ifvideos uploaded by Wu Yongningcontain no contents prohibited by laws and regulations, it does not necessarily mean that the defendant hasno safety protection obligation to review or even delete the videos.In this case, most of the videos uploaded by Wu Yongning to Huajiao Live Streaming platform are about dangerous actions at heights. Lack of corresponding safety protection is also reflected by the fact that Wu did not wear any protective equipment while climbing skyscrapers and performing those stunts.These actions of Wu would bring great risks to his own life safety.Based on the fact that the right to life should be the highest form of right protected by law and the essence of the safety protection obligation is a kind of obligation to prevent and avoid danger, the defendant should have fulfilled relevant protection obligation in the attitude of attaching great importance to life, health and safety,when it found that the contents of the videos were dangerous and when it should know that Wu Yongning may risk his life to shoot such videos.After discovering the relevant risks, the defendant should have taken specific measures such as deleting, blocking and disconnecting the videos.But in this case, the defendant did not fully fulfill the above safety protection obligations.
(II) Whether the defendant should bear tort liability?
The defendant did not fulfill its obligation of safety protection, and Wu Yongning's right to life was indeed damaged. Therefore, the key to whether the defendant should bear tort liability lies in the causal relationship of the tort and in whether the defendant is at fault.
Regarding the causal relationship between Wu Yongning's death and the defendant's failure to fulfill its obligation of safety protection, to determinethe causality requiresadetermination of the degree of correlation between specific facts.This process cannot be solely based on theories but should also be based onthe specific circumstances of individual cases and take into account common senses and social experience. In this case, the above acts of the defendant do not directly lead to the damage result of Wu's death, but it does not mean that there is no connection between the two.
According to the plaintiff, Wu Yongning was born in a rural family in Hunan Province. Withhis mother suffering from mental illness, Wu lived in relatively difficult family conditions since childhood. He went out to work many times and then went to Hengdian to become a figurant and stuntman. Considering Wu's family background and life experience, we can infer that he had a very strong desire to improve his living conditions. The rise of online celerityeconomy seemed to provide Wu withsuch an opportunity, and he also intended to seize it. He shot the videos of dangerous actions involved in the case mainly to attract fans, increase public attention, and improve his popularity so that he might obtain fans’donations andgain certain economic benefits, thusachieving his purpose ofrapidly becoming famous and improving living conditions. Indeed, these videos of extremely dangerous actions easily stimulated viewers and catered to the psychological needs of some people, earning Wu a large number of fans on various live streaming platforms. In this way, Wu did gain considerable popularity.
Webcast media likenetwork live streaming or recordedbroadcasting platforms have faster spreading speed, wider spreading range, broadercoverage of the public, and more interactivity than traditional broadcasting media like radio and televisionand paper media like newspapers, books and periodicals, which enable these platforms and their participants to obtain economic benefits more quickly and are thus far more influential on the society than traditional media. Moreover, Wu Yongning's adventurous activities are easier to get people's attention through video recording than other recording methods such as text, picture, audio and so on, because they offer more intense and intuitive sensory stimulation. To sum up, it was very difficult for Wu to achieve the above goals through traditional media, but through a network platform such as a live streaming platform or a recorded broadcasting platform, the odds were that he would achieve these goals very quickly. Thusit can be imagined that if allnetwork platforms refused to release Wu Yongning's relevant videos of dangerous actions, Wu would have neither relevant release channels nor the motivation to obtain relevant economic benefits, and the possibility of continuing such dangerous challenges at heightswould be very low. Therefore, the Courtholds that: first of all, the defendant HuajiaoLive Streaming platform provided convenience for Wu Yongning’s uploading of videos on the network by offering him a uploading channel;secondly, by taking no measures to deal with over 100 videos of dangerous actions uploaded on Huajiao Platform by Wu Yongningwithin nearly 4 months from his registration of the account to his death, the defendant actually let go or even affirmed such dangerous activities. In addition, to use Wu Yongning’s popularity for publicity, Huajiao Platform had invited Wu to shoot a video for a promotion activity and paid him more than two months before his death. Therefore, the defendant’s platform played a certain role in promoting him to continue dangerous activities. To sum up, the Court holds that the defendant's failure to fulfill its obligation of safety protection is the inducing factor leading to Wu Yongning's death and there is a certain causal relationship between the two.
As to whether the defendant has any fault, the Court holds that fault is manifested in two forms: intentional and negligent. Negligence refers to a state of mind in which the actor should or canbe aware of the result of violating others’ civil rights and interests but fails to do so. In this case, most of the videos shot by Wu Yongning are about his climbing activities at heights. The danger of such activities is obvious, and the possible dangerous results are predictable, whichthe defendant should know and pay attention to. At the same time, the defendant also has the ability to review the contents of videos uploaded by Wu Yongning. It could have taken necessary measures such as deleting, blocking and disconnecting links to deal with them and giving safety tips to Wu Yongning, but did not fully take such measures. Therefore, the defendant was at fault for Wu Yongning's fall and death.
To sum up,the defendant shall bear corresponding liability for the fall and death of Wu Yongning due to its failure to fulfill the obligation of safety protection towards Wu.
Three, determination of the tort liability to be borne by the defendant
(I) Degree of the Defendant’s Liability
Although the defendant should bear the liability for Wu Yongning's death, there are circumstances allowing the reduction of the defendant’s liability considering the specific circumstances of the case and the fault and causal relationship involved in the case.Thus the defendant shall bear a small degree of liability.
Wu Yongning's adventure of climbing skyscrapers without any safety measures posed a major risk to his own life. This behavior was a contempt for life, in contradiction with the social value of respecting life, and might have consequences such as endangering firefighting safety and threatening public traffic safety. The shooting and dissemination of relevant videos promoted the above bad value orientation, catered to the curiosity of some people, and were easily misleading.
Although there is a certain causal relationship between the defendant's failure to fulfill its obligation of safety protection and Wu Yongning's death, the two are not directly and decisively causal. As a network service provider, the defendant's act of providing network information storage service would not directly lead to Wu's death. Its actswere only an inducing factor in this case, and Wu's accidental death from shooting videos of dangerous actions was not an inevitable event. Wu 's shooting and uploading of relevant videos of dangerous actions were his voluntary behaviors. Theseadventurous activities were the main reason for his death. Although the plaintiff claims that Wu was in the contract period withHuajiao Live Streaming when he fell to his death and that Wu climbed Huayuan International Center in Changsha to complete the tasks stipulated in the contract, she has not provided any evidence to prove it. Therefore, the Court will not accept the plaintiff's opinion that the defendant had direct promotion and causal relationship with Wu Yongning's death.
Wu Yongning was at fault for his own fall. As a person with full capacity for civil conduct, Wu should be able to fully realize subjectively that the risky activities he didwere highly dangerous. He should also be able to realize that shooting videos of these risky activities wouldbring significant risks to his health and life safety. As such, he should be able to foresee the corresponding damage result.
In this case, the network service provider cannot take safety protection measures towards Wu Yongning in the physical space. The time, place and ways of doing the adventurous activities were completely controlled by Wu himself. As a network service provider, the defendant could not actually control Wu's dangerous activities in physical space.
To sum up, Wu Yongning himself should bear the main responsibility for his death. The defendant's liability for Wu's death is minor and slight.
(II) Specific Liabilities to beBorne by the Defendant
Article 18 of the Tort Liability Law stipulates that if the infringed dies, his/her close relatives have the right to request the infringer to bear the tort liability. Therefore, in this case, the plaintiff, as Wu Yongning's mother, has the right to require the defendant to bear corresponding liabilities. According to relevant provisions of the Tort Liability Law, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in Hearing Cases of Compensation for Personal Injuries and the Interpretation of the Supreme People's Court on Several Issues Concerning Determination of Compensation for Mental Damage in Civil Torts, the plaintiff has the right to claim reasonable losses against the defendant such as death compensation, funeral expenses, living expenses ofdependants, compensation for mental damage, transportation expenses and charge for lost working time for funeral-related issues etc. and to demand an apology. However, the court will not support the plaintiff's claim for reasonable losses intransportation expenses and charge for lost working time for funeral-related issuesas the plaintiff has failed to provide related evidence.As to the plaintiff's claim foran apology,as mentioned earlier, Wu Yongning himself should bear the main responsibility for his deathwhile the defendant should bear a slight liability for it. The defendant's acts were only an inducing factor leading to Wu’s death while Wu was atfault for the occurrence of the damage and the consequence thereof.Therefore, theCourt will no not support this claim.
Determination of the specific compensation amount:regarding the death compensation, the plaintiff has submitted evidence to provethat Wu Yongning had been working and living in the city continuously, which the Court has accepted. The plaintiff calculates the death compensation atRMB 1,359,800 based on the per capita disposable income of urban residents of RMB 67,990 per year in 2018 in Beijing and a duration of 20 years, which is in line with the legal provisions and is confirmed by the Court. Regarding the funeral expenses, the plaintiff calculatesfuneral expenses at RMB 50,802 based on an average monthly salary of RMB 8,467 for Beijing employees in 2017 and a duration of half a year, which is in line with the legal provisions and is confirmed by the Court. Regarding the living expenses of the dependants, the Court holds that the plaintiff He Xiaofei, with Grade 3 mentally disability and thus no ability to workand no source of income, should receive the living expenses ofdependants. The plaintiff claims to calculate the expenses by multiplying the average annual living expenses of rural residents in Beijing by 20 years, but the calculation data provided thereby are wrong. In 2018, the average annual living expenses of rural residents in Beijing should be RMB 20,195 per year. Although Wu Yongning is the only son ofHe Xiaofei, her spouse Feng Fushan should also bear the support obligation towards her. Therefore, the living expenses of dependants of HeXiaofei are RMB 20,195 x 20 years /2= RMB 201,950. As for the compensation for mental damage: the plaintiff claims an amount of 50,000 RMB, but the Court holds that Wu Yongningwas at fault in the occurrence of the damage facts and the damage consequences, so the court will determine a proper reduction in the total amount of compensation. The above expensestotalRMB 1,612,557. The plaintiff claims that the defendant should bear the compensation liability of RMB 60,000 thereof. As mentioned earlier, the defendant’s platform should bear corresponding compensation liability for Wu Yongning’s death due to its failure to fulfill the obligation of safety protection towards Wu.But at the same time Wu himself should bear the main responsibility for his death, and the defendant's liability for Wu's death is slight. Therefore, the Court has decidedthat the defendant should compensate the plaintiff a total of RMB 30,000 for various losses. Regarding the litigation expenses in this case, the plaintiff submitted an exemption application to the Court supported by relevant certificates, which hasbeen verified by the Court to be in conformity with the regulations and is thus approved by the Court. The litigation costsof this case shall be borne by the defendant.
To sum up, in accordance with Article 2, Article 6, Article 15, Article 16, Paragraph 1 of Article 18, Paragraph 1 of Article 36, and Paragraph 1 of Article 37 of the Tort Liability Law of the People's Republic of China, Paragraph 3 of Article 17, Article 27, Article 28, and Article 29 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in Hearing Cases of Compensation for Personal Injuries, and Paragraph 1 of Article 1, Article 7, Paragraph 2 of Article 8, and Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning Determination of Compensation for Mental Damage in Civil Tort, the Court hereby rules as follows:
I. The defendant Beijing MijingHefeng Technology Co., Ltd. shall compensate RMB 30,000 to the plaintiff He Xiaofei;
II.Other claims of the plaintiff He Xiaofei aredismissed.
Failing to perform any obligation of pecuniary payment within the period stated in the judgment, the defendant Beijing MijingHefeng Technology Co., Ltd. shall pay double interest for the debt for the period of deferred performance in accordance with Article 253 of the Civil Procedure Law of the People’s Republic of China.
The case acceptance fee of RMB 535 shall be borne by the defendant Beijing MijingHefeng Technology Co., Ltd. and paid within 7 days from the effective date of this judgment.
If refusing to accept the judgment, either party may, within fifteen days since the date of service of the Judgment, submit an appeal to the Court with copies prepared based on the number of the opposite party to appeal to Beijing No. 4 Intermediate People’s Court. For failure to pay the appeal case acceptance fee within seven days after the expiration of the appeal period, the appeal will be automatically withdrawn.
Presiding Judge ChenFangxiong
Judge Liu Shuhan
Judge Zhang Bo
May 21, 2019
Clerk Guo Jinchen