Online review related right infringement cases
As online shopping is now a major lifestyle practice, online product reviews by consumers have become a major reference for their shopping decisions. Disputes concerning online reviews are increasing as a result.
Case 1: Does cashing back for positive reviews constitute fraud?
In April 2021, the plaintiff surnamed Liu bought some goji online based on the huge number of positive reviews it had garnered. Upon receiving the product, he found out the goji was much inferior to the images shown in the review section and on the sales page. Moreover, there was a note inside the packaging saying "get cashback for positive reviews". Liu contacted the store and found out the positive reviews were all pre-drafted by the store and sent to consumers for publishing. Whoever published it would get 5 yuan ($0.74) cashback. Believing the store was committing fraud in that behavior, Liu sued the store at the Beijing Internet Court (BIC), claiming a refund and compensation for punitive damages at three times the payment amount. The court supported Liu's claims in its judgment.
Tips from the judge:
Four conditions are necessary to constitute fraud: the intent to defraud, the action of fraud, the wrongful understanding caused by the fraudulent action, and a consequence arising from the wrongful understanding. In this case, the online store used the "cashback" to tempt consumers to post good reviews of its products which led to wrongful judgments by subsequent consumers about the quality of its products. The store had the intent and action of fraud. The plaintiff made a wrong judgment based on the fake reviews and purchased the products, forming a causal relationship between his purchasing behavior and the store's fraudulent action.
Nowadays, online stores' using a "cashback" scheme inviting consumers to post fake reviews in order to boost sales may constitute fraud or even unfair competition to others in their industry. They should focus on improving product quality instead of cutting corners. Meanwhile, consumers are recommended to shop with rationality and basic judgment.
Case 2: Is giving negative reviews to a store an infringement of the store owner's right to reputation?
Li the plaintiff bought a bottle of pear syrup from an online store. She found out the production date of the syrup was after her payment date when she received it, After communication with the store in vain, she gave a negative review to the store and uploaded the chat record with the after-sales service staff and product photos. The business owner of the store sued Li at the BIC, claiming infringement of its right to reputation and economic losses.
After trial, the BIC concluded the fact that the production date was after the purchase date was confusing and misleading, and thus gave Li objective grounds for posting a negative review of the store. During the communication between the store and Li, the store didn’t provide reasonable explanations and solutions. Instead, it was blunt and prevaricative. On the other hand, the evidence was that Li bought the syrup for her kid. Under those circumstances, Li's negative review did not constitute defamation and thus did not infringe upon the plaintiff’s right to reputation. The court rejected the plaintiff's claims.
Tips from the judge:
The review mechanism has become a crediting mechanism for online shopping platforms where consumers have the right to comment or criticize the quality of the products or services purchased. When deciding the boundary between expressing reasonable claims and infringing a legal person's reputation right, the degree of fault and the degree of illegality of the litigant's behavior under specific scenarios should be taken into full consideration, as well as whether the acts conform to socially accepted values.
Business operators should focus on improving product and service quality and be comparatively tolerant with reviews from consumers. As for consumers, they need to distinguish right infringements from claim expressions, and avoid using commenting as a tool to vent personal feelings as well as personal attacks and uncivilized words.
Case 3: Is posting a client's before and after comparison photos from gym workouts on a major website without authorization legal?
The plaintiff surnamed Wei was a client of a gym company. His gym coach took comparison photos of him before and after he took the gym exercises, and requested to use those photos for promotion purposes without specifying the scope of promotion. Wei consented to the request. Later Wei found the photos on Dazhong Dianping, a Chinese customer review app, as part of the promotion materials for the gym company. Wei tried to talk to the company to delete his photos which was turned down by the company. So Wei sued the company at the BIC claiming infringement of his rights to likeness and reputation and requesting an apology and compensation for loss. The court ruled after trial that the company infringed upon Wei's right to likeness and should apologize and compensate for his loss.
Tips from the judge:
As stipulated in the Civil Code, a natural person enjoys the right to likeness, and is entitled to make, use, publicize or allow others to use his likeness. The right holder is allowed to transfer his right to likeness to a certain extent and profit from it. In real life, everyone enjoys the right to likeness. It is worthy of protection and has commercial value. Personal portraits cannot be published online without the approval from the right holder. Even copyright holders of portraits should respect the personality interests of the portrait subjects and not publish their portraits without their consent.