Beijing Internet Court Protection of Network-related Rights and Interests Top Ten Typical Cases
Beijing Internet Court
Protection of Network-related Rights and Interests
Top Ten Typical Cases
Email Data Ownership Case: Users Have Rights and Interests to Email Accounts and Mail Data
—— Wang X v. XX Technology Company and XX Information Service Company over Network Service Contract Dispute
As the records of information that exist outside the human body and having various forms of physical storage and dissemination media, data is objective and can become the object of civil-law rights. Users enjoy the right to the data set expressed in the form of email in their mailboxes. Based on the use of free mailboxes in general, it is reasonable and necessary to restrict the rights of service users to a certain extent under certain conditions. However, as the content of the “mailbox emptying” clause concerns the major interests and concerns of free mailbox users, the party providing the standard clause shall take reasonable measures to remind users. In this case, by providing the mailbox service, the two defendants were carrying out business operations as market entities, and shall thus not be exempted from corresponding legal responsibilities on the ground that the service was provided free of charge. This case is the first case involving the identification of the ownership of email data and the confirmation of the validity of the “mailbox emptying” clause.
On April 6, 2006, the plaintiff Wang X made an application and registered a “free mailbox” provided by the two defendants on the Internet. In April 2020, the plaintiff found that all emails in the mailbox were deleted because of long-term non-login. The plaintiff believed that the two defendants failed to fulfill the obligation of giving reminders and explanations on the “mailbox emptying” clause or inform the plaintiff before emptying the mailbox. Therefore, the plaintiff filed a lawsuit, requesting the court to identify the ownership of the email account and the emails and confirm the clause in the free email service agreement of the website that “the user of the free mailbox agrees that if the email account registered thereby is not used in any form (WEB/POP3) for any 90 consecutive days, the website shall have the right to delete the content in the mailbox, stop providing free email service to the user, and delete the email account” (hereinafter referred to as the “email emptying” clause) as an invalid standard clause.
[Key Points of Adjudication]
Users enjoy rights to email accounts and the mail data
A mailbox is an online virtual mailbox system for storing emails, created and existing in the virtual network space, and depending on hardware measures such as servers built by service providers. And an email account is the only email address assigned to a user by a platform service provider after the user applies for registration. In this case, by requesting the court to determine that he has the ownership of the email account involved, the plaintiff was actually requesting the court to confirm that the plaintiff was using the service provided by the platform as the “user” of the account thereof. Since a legal and valid contractual relationship had been formed between the user and the platform through the user service agreement, the plaintiff, as a user, shall enjoy the right to use the email account involved based on the service agreement with the defendant. Therefore, the court did not support this claim of the plaintiff.
Regarding the plaintiff’s claim for confirming that the ownership of the emails in the mailbox involved shall belong to the plaintiff: as the emails in the mailbox involved were already deleted, content of previous emails cannot be recovered. However, according to daily life experience, the content that can be contained in the emails, including texts, pictures, videos, audios, documents, sending and receiving time, address book, etc. are very likely to constitute information “that can be used to identify the identity of persons”. They are biological information and social traces of the persons of the civil law recorded in an electronic form, and a data set with strong personal characteristics that can be used to directly identify a specific individual after a little sorting, which may even have the attribute of personality rights under specific circumstances. Therefore, email users should enjoy corresponding civil-law rights or interests on the emails. However, as mentioned above, these rights or interests are not exactly the “ownership” claimed by the plaintiff. In this case, all the emails involved had been deleted, which cannot be recovered as acknowledged by all parties, and the plaintiff did not produce evidence to prove the specific situation of the deleted emails. When the object of the right claimed by the plaintiff had objectively disappeared and the specific content cannot be confirmed, it was not appropriate to identify the nature of the plaintiff’s rights or interests to the emails, especially the “ownership” thereof. Therefore, the court dismissed this claim of the plaintiff.
The “mailbox emptying” clause shall be invalid when no reminder or explanation is given
The service terms involved in the case were standard terms. Regarding whether free mailbox service providers have the right to stipulate the content of “mailbox emptying” through a standard clause, the court held that: users of free mailboxes, as the service users, can register their account to use mailbox products without paying direct consideration, while mailbox service providers have to undertake the server resources and operation and maintenance costs because mailboxes rely on mailbox systems built by the service providers and occupy a lot of server space, so it is essential to balance the rights and obligations between service providers and service users. Therefore, it is reasonable and necessary to restrict the rights of service users to a certain extent under certain conditions, which does not involve exempting one party from its liabilities, aggravating the liability of the other party or excluding the other party from main rights thereof or involve any other circumstances leading to contract invalidation. In addition, based on the use of free mailboxes in general, the free mailbox service agreements provided by other free mailbox service providers all have similar clauses on mailbox emptying. Therefore, free mailbox service providers have the right to stipulate the content of “mailbox emptying” through a standard clause. However, whether such a clause has effect on a specific user should still be determined as per legal provisions.
In this case, as the content of the “mailbox emptying” clause concerns the major interests and concerns of the free mailbox user, the party providing this standard clause shall take reasonable measures to remind the user. The mailbox service involved in the case was indeed free, and the plaintiff could enjoy it directly without paying the consideration. However, judging from the development history of the network service industry in China, this kind of free-use systems can help operators to quickly accumulate users and expand market share, which should belong to a business model of operators. With the development of the Internet industry, some operators would provide a charged service model after accumulation of users. In this case, the website also provides charged email service. In essence, by providing the email service, the defendants were still carrying out business operations as market entities, and shall thus not be exempted from corresponding legal responsibilities on the ground that the service was provided “free of charge”. To sum up, the clause involved in the case concerned the major interests and concerns of the plaintiff, but the defendant failed to fulfill the obligation of reminding the plaintiff, so the clause shall have no effect on the plaintiff.
The court ruled that the “mailbox emptying” clause in the Free Mailbox Service Terms of the Website shall have no effect on the plaintiff Wang X; and all other claims of the plaintiff Wang X were dismissed. Neither party appealed after the judgment of first instance was made, and the judgment has come into force.
In-game Mirror Image Case: Using Virtual Characters to Reproduce “Identifiable” Image of Film and TV Characters Constitutes Infringement of Other People’s Right to Likeness
—— Yang X v. XX Network Technology Co., Ltd. over Internet Infringement Liability Dispute
The iteration of information technology and the update of communication means in the era of digital economy have promoted the innovation in the forms of likeness, evolving from portraits and photos to traditional carriers like films, sculptures and drawings and now extending to include virtual characters like personal cartoon portraits. And the wide application of videos, AI, and photo editing software arising from the development of Internet big data has led to more diversified forms of infringement of the right to likeness. This case has involved the dispute over a new type of infringement of the right to likeness after the implementation of the Civil Code, through which an effective response was made to the issue whether a user’s act of imitating the image of a film and television character of the right holder and creating a highly similar in-game virtual character constitutes an infringement of the right to likeness.
Yang X is an actor who played a role in a famous film. XX Network Technology Co., Ltd., the developer of the game involved in the case with the same theme as the film, produced and used without authorization a virtual character in the game which was highly similar to the image of Yang in the film to promote its game product.
The plaintiff Yang X believed that when promoting its game product, XX Network Technology Co., Ltd. used his likeness without authorization to attract the attention of users through the celebrity effect, thereby obtaining more commercial benefits, which could easily mislead consumers to think that Yang had a cooperative relationship with the game involved, constituting a serious fraud to consumers. Yang requested the court to order XX Network Technology Co., Ltd. to make a public apology and compensate Yang for the economic loss and reasonable expenses for safeguarding rights.
The defendant XX Network Technology Co., Ltd. argued that it did not use Yang’s likeness, because the virtual character in the game involved and the likeness of Yang had many significant differences in features including but not limited to the eye shape, furrows under the eyes, eyebrows, nose, ears, face shape, skin color, etc., and thus there was no infringement of Yang’s right to likeness; and that the basis of the right claimed by Yang was wrong, which was arbitrarily expanding the coverage of the right to likeness since the virtual character used in the game and the likeness of Yang had no identicality “in the external image by which a specific natural person can be identified” as stipulated by law.
[Key Points of Adjudication]
The image of a film and television character should be protected by the right to likeness as long as the image can reflect the “external image” by which a natural person “can be identified”. Whether the use of a virtual character to reproduce the image of the film and television character constitutes an infringement of the right holder’s right to likeness should be determined by judging whether the virtual character and the image of the film and television character are identical. As long as being clear and recognizable, they should be considered as identical, and then a one-to-one correspondence with the right holder can be established.
The court ruled that the defendant XX Network Technology Co., Ltd. shall make an apology to the plaintiff Yang X and compensate the latter for the economic loss and reasonable expenses for safeguarding rights. Neither party appealed after the judgment was made, and the judgment has come into force.
Electronic Coupon Case: Setting an Invisible Threshold for the Use of Virtual Property Constitutes Infringement of Consumers’ Rights and Interests
—— Sun X v. Beijing XX Ecommerce Company over Network Service Contract Dispute
At present, the new business model of redeeming membership rewards points (coins) for virtual property (coupons) on network platforms has formed a certain industrial cluster and transaction scale and enhanced the stickiness of consumer-users, which can meet diversified and personalized consumption needs. It has been made clear through this case that operators should disclose the specific information attached to electronic coupons in a comprehensive, authentic, accurate and timely manner to protect consumers’ right to be informed and right to make choices. If setting time limits for redemption, rules of use, restrictions or specified contents and other important information for electronic coupons in webpage promotion but failing to truthfully inform consumers of the same, operators shall bear responsibilities for failing to inform consumers of commodity information in a truthful and comprehensive manner. When the value of electronic coupons cannot be determined, the amount of compensation shall be determined from the perspective of protecting the legitimate rights and interests of consumers to the maximum extent.
During the “Super City” activity of XX online shopping mall’s Super Brand Day, Sun X redeem 19,999 super coins obtained in the activity for a coupon entitled “TOP SPORTS: Get an RMB 299 deduction for your pay at or over RMB 299”. The redemption list showed: Coupon titled “TOP SPORTS: Get an RMB 299 deduction for your pay at or over RMB 299”, super coins “19,999”, “20 coupons in total: 20 coupons have been redeemed”, and “redeemed”. To the left of the coupon involved there was the picture of a Nike short-sleeved T-shirt. In the process of using the coupon, Sun was told that it was only applicable to two short-sleeve T-shirts of fixed size in the store involved. Sun thus filed a lawsuit, claiming that Beijing XX Ecommerce Company had the intention to defraud consumers and should return the marked value of RMB 299 of the coupon and pay the punitive damages of RMB 897.
[Key Points of Adjudication]
Did the marking of the “coupon” involved in the case constitute fraud?
Before the redemption, the product shown in the picture displayed to the left of the coupon involved was a Nike short-sleeved T-shirt, which was basically consistent with the use scope of the coupon. As can be seen from the list of other coupons for Blueteeth earphones, shampoo, etc. provided by Sun, the coupons provided for the activity were all coupons for specific products, not universal coupons. In the “Use Interface” and “Details” pages of the coupon involved, the store, brand, applicable period, product model and other information were further indicated. Sun claimed that the coupon involved only stated “TOP SPORTS: Get an RMB 299 deduction for your pay at or over RMB 299” in the title but did not mark restrictions like “for Nike short-sleeved T-shirts only” in advance. After comprehensive consideration of the Rules for the “Super City” Activity of XX Super Brand Day, the marked information in the title of similar coupons and the information provided in different pages of the coupon involved, it can be concluded that there was a lack of preciseness in the setting of the coupon involved by Beijing XX Ecommerce Company, but there was not enough evidence to infer that Beijing XX Ecommerce Company had the subjective malicious intention to make false publicity and use shoddy products to replace good products. The problem shall belong to a defect in the webpage publicity and did not constitute fraud.
What kind of responsibility should Beijing XX Ecommerce Company bear?
In this case, Sun X provided the screenshots before and after the redemption of the coupon involved. Before redemption, the coupon interface showed “TOP SPORTS: Get an RMB 299 deduction for your pay at or over RMB 299”; after redemption, the interface showed “Restrictions on products: this coupon is only applicable to certain products in the store”, and there were only two short-sleeved T-shirts available in the product details interface. It can be seen that important information about the coupon involved, such as the applicable period and rules of use and restrictions, can only be viewed in specific pages after the user has completed the redemption, and there was no “return” option in the whole redemption process. The types of products available for selection are important factors of consideration for consumers in online shopping. As the sponsor and organizer of the “Super City” activity of the Super Brand Day, Beijing XX Ecommerce Company, by failing to mark the restrictions such as the applicable scope of products and conditions of use in advance in the coupon entitled “TOP SPORTS: Get an RMB 299 deduction for your pay at or over RMB 299”, failed to fulfill the responsibility of truthfully and comprehensively informing consumers of the product information.
Value determination of the “coupon” involved
In this case, Sun X completed a series of acts like signing in and inviting friends and chose to redeem the 19,999 super coins obtained thereby for the coupon involved in accordance with the Rules for the “Super City” Activity. The coupon had three particularities: first, it was virtual, stored in the server of the network platform, and cannot be cashed out; second, it was dependent, as the acquisition and use of the coupon had to satisfy the condition of “pay at or over RMB 299”, and the use thereof was limited to the store of “TOP SPORTS” during the “Super City” activity which has been removed from the shelves at present; third, the coupon involved was issued for promotion during the “Super City” activity, which was not negotiable and had no definite currency exchange value. Therefore, determining the value of the coupon involved in this case was the prerequisite for compensating for Sun’s economic loss.
Considering the facts of the case and the statements of both parties, the value of the coupon involved may be determined with reference to three standards. The first was the marked value. The title of the coupon involved was “TOP SPORTS: Get an RMB 299 deduction for your pay at or over RMB 299”, the literal interpretation of which would be “you can enjoy an RMB 299 reduction when the price of the products to be bought exceeds RMB 299”. According to the marked information, the value of the coupon involved can be identified as RMB 299. The second was the consideration of the super coins. Since Sun X redeemed 19,999 super coins issued by XX online shopping mall for the coupon involved, the value of the coupon involved shall be the value of the 19,999 super coins. According to the Description of Situation provided by Beijing XX Ecommerce Company, the consideration standard between the super coins and the X Beans was that one can redeem 2,000 super coins for a “lucky treasure box” containing 500 X Beans (with the worth of RMB 5), based on which it can be calculated that the value of the 19,999 super coins was about RMB 49.9. Thus, the value of the coupon involved can be identified as RMB 49.9. The third was the order price. The screenshot of the order provided by Sun showed that the price of the purchased short-sleeved T-shirt after using the coupon was RMB 69. Therefore, based on the value of the product in the order, the value of the coupon involved can be identified as RMB 69.
Seen from the title of the coupon, “TOP SPORTS: Get an RMB 299 deduction for your pay at or over RMB 299” meant that the maximum realizable value of the coupon was RMB 299. Seen from the quantity, “20 coupons in total: 20 coupons have been redeemed” meant that the coupon enjoyed some scarcity, so the value thereof cannot be determined only by the value of the corresponding 19,999 super coins and the X Beans. In addition, during the trial, Sun also argued that the 19,999 super coins were not provided for free, but required a lot of time and energy to complete tasks that helped Beijing XX Ecommerce in promotion, which should also be used as a reference factor for determining the value of the coupon involved. From the perspective of protecting the legitimate rights and interests of consumers to the maximum extent, considering the above factors, the value of the coupon involved was determined as RMB 299 by mainly referring to the marked value of the coupon involved.
The court ruled that Beijing XX Ecommerce Company shall compensate Sun X for RMB 299. Neither party appealed after the judgment was made, and the judgment has come into force.
Case over Personal Information of the Deceased: Personal Information Processors Shall Bear the Obligation of Protecting Personal Information Rights of the Deceased
—— Guo X et al. v. Shanghai XX Technology Company et al. over Personal Information Protection Dispute
This case has provided a pilot model of practice in the protection mode of the personal information of the deceased. Protecting the personal information rights of the deceased is not just a promise made by written laws. These rights are important rights protected with great efforts in the judicial practice of China. The practical relevance of this case lies in three aspects. First, the case has helped clarify that after the death of a user, the personal information processor should still be obliged to protect the personal information rights of the deceased and allow the close relatives thereof to retrieve and make copies of the personal information of the deceased. Second, the case has helped clarify the boundary of a personal information processor’ obligation in protecting the personal information of the deceased, which includes “providing other reasonable channels for retrieving the personal information of the deceased” and “no longer allowing other personal information processors based on business connections to actually control the personal information of the deceased”. Third, it has helped determine the reasonable boundary to be observed by natural persons in retrieving and making copies of personal information, i.e., the principles of “legality, necessity and justifiability” shall be observed. In this case, the four plaintiffs requested to realize the rights of retrieval and making copies by directly logging in to the account of the deceased, which obviously risked infringing on the legitimate rights and interests of a third party and was thus not supported by the court. This case is a classic case over the protection of personal information of the deceased. The judgment has truly demonstrated the effective way to balance personal information rights and the legitimate commercial interests of personal information processors. The so-called balance of interests is no longer empty talk, but a clear and operable logic of adjudication.
Li X, a close relative of the four plaintiffs, was engaged in the related business of a platform in Beijing before his death. The defendant I, Beijing XX Company, was the operator of the platform’s business in Beijing; the defendant II Shenzhen XX Company and defendant III Shanghai XX Technology Company were respectively the operators of the platform’s employee-end app and client-end app; and the defendant IV Shanghai XX Human Resource Company was responsible for settling the salary for Li based on the statistical business data provided by Beijing XX Company.
In 2021, Li died unexpectedly. In order to protect their legitimate rights and interests, the four plaintiffs tried to log in to Li’s account on the employee-end app to check Li’s attendance records and other personal information, but found that the account had been deactivated by Shenzhen XX Company, leaving the relevant information unable to be checked. The four plaintiffs believed that the defendant II Shenzhen XX Company’s act of deactivating Li’s account left them unable to check Li’s personal information, which seriously hindered them from safeguarding their own legitimate rights and interests and thus infringed on their right to claim personal information rights. The four plaintiffs also believed that the four defendants had all processed the above personal information of Li based on their respective business needs. Therefore, the four plaintiffs filed a lawsuit against the four defendants, requesting the court to order the four defendants to provide the relevant personal information of Li claimed thereby and bear the corresponding tort liability.
[Key Points of Adjudication]
The four plaintiffs had the right to claim rights to Li’s personal information.
Article 49 of the Personal Information Protection Law of the People’s Republic of China has stipulated that if a natural person dies, the close relatives thereof may exercise the rights to handle the personal information of the deceased, such as consultation, duplication, rectification, and deletion, for their own legitimate and justifiable interests, unless the deceased has made other arrangements before his/her death. According to this provision, on the premise of Li’s death, the four plaintiffs, as the close relatives of Li, should meet the following conditions in order to claim rights to the personal information rights and interests of Li: the claim was targeting the relevant personal information of Li; the claim was aimed at safeguarding the legitimate and justifiable interests of the four plaintiffs themselves; and Li had made no other arrangements before his death.
First of all, the four plaintiffs required the four defendants to provide specific personal information such as Li’s attendance records, which belongs to the exercise of rights to Li’s relevant personal information; secondly, according to investigation, the above personal information may be related to the cause of Li’s death, based on which the four plaintiffs had filed a separate lawsuit. The four plaintiffs were safeguarding their own interests by claiming rights to Li’s personal information and did not violate legal provisions and public order and good morals; finally, there was no evidence in this case to show that Li had made any arrangement before his death for his close relatives to exercise their rights to his personal information after his death, and thus the four plaintiffs had the right to claim rights to Li’s relevant personal information.
Direct login to Li’s account by the four plaintiffs in order to exercise their rights does not conform to the principles of legality, justifiability and necessity.
Although the Personal Information Protection Law has stipulated that the close relatives of the deceased can claim rights to the relevant personal information of the deceased, Article 5 thereof has also stipulated that the processing of personal information shall follow the principles of legality, justifiability, necessity and good faith. Therefore, network service providers should process the personal information of the deceased in a legal, justifiable and necessary manner, and should not allow the close relatives thereof to claim rights to the relevant personal information of the deceased by all means without any restrictions.
For the personal network account of the deceased before his/her death, as there may also be the private and personal information of a third person in the account, directly allowing close relatives to log in to the account to view relevant content may infringe on the relevant rights of the third person, which is contrary to the specific provisions and legislative purposes of the Personal Information Protection Law. In this case, Li’s account also involved the personal information and business information of third persons not involved in the case, and thus it was not inappropriate for Shenzhen XX Company, a network service provider, not to allow the four plaintiffs to directly log in to Li’s account to exercise their rights.
The personal information processors did not exclude the four plaintiffs from exercising their rights through other reasonable channels, and thus did not commit infringement.
The court made the judgment of first instance, dismissing all claims of the four defendants. Neither party appealed, and the judgment of the case has come into force.
Personal Information Checking and Copying Case: Personal Information Processors Shall Choose a Reasonable Way to Provide Information Based on Their Information Storage Forms and Capacities
—— Zhang X v. Beijing XX Information Service Company over Personal Information Protection Dispute
This case has enabled positive and beneficial explorations on the exercise of personal information-related rights from many aspects. First, it has helped clarify the principle of good faith to be observed by individuals in exercising the right to check and make copies of personal information. The principle of good faith is not only a fundamental principle of the Civil Code, but also is ascertained by Article 5 of the Personal Information Protection Law. Therefore, both personal information processors and individuals should abide by the principle of good faith. Individuals shall not abuse their rights when exercising their rights related to personal information. Second, it has helped clarify the object of personal information to be checked and made copies of, which shall generally be limited to one’s own personal information. If the relevant information is inseparable from other people’s information, then the legitimate rights of the other subjects of the personal information shall not be infringed, and the impact caused to other subjects should be as little as possible. Third, it has helped clarify the way in which personal information processors fulfill relevant obligations. As long as individuals’ demand for checking and making copies of his/her information are met, personal information processors can choose a reasonable way of providing information according to its information storage forms and storage capacities, without strictly following the requirements and instructions of the individuals, which is also the embodiment of the principle of good faith. This case is a typical case over the right to check and make copies of personal information, which can provide a reference solution and path for the handling of similar cases in the future.
Zhang X, in order to understand the use of his account, required the platform to send to the designated mailbox in the form of an editable xlsx file the complete browsing history of the account since registration, including the name, publishing time and view count of each video viewed, the account names of the uploaders, and the specific time when Zhang watched the video.
Beijing XX Information Service Company, the operator of the video platform, expressed that since users can independently check and make copies of personal information through functions like “Viewing History” and “Feedbacks and Help”, and the names of videos and account names of uploaders were the personal information of not only Zhang but also the uploaders, Beijing XX Information Service Company would provide the information to Zhang by providing the playing links in order to avoid infringing on the video uploaders’ personal information rights and interests.
Zhang X, refusing to accept the form of provision, filed a lawsuit to the court against Beijing XX Information Service Company.
[Key Points of Adjudication]
Individuals can apply to network service providers to check and make copies of their browsing history in network activities. However, when some information belongs to the personal information of multiple subjects, the balance of interests shall be fully considered by observing the following principles: first, the subject who checks and makes copies of the personal information should have legal and reasonable interests therein; second, the legitimate rights of other subjects should not be infringed, and the impact on other subjects of the personal information should be as small as possible.
Regarding the ways for personal information processors to fulfill relevant obligations, on the premise of not hindering the exercise of individuals’ right to check and make copies of personal information, personal information processors may choose a reasonable way of providing information based on their information storage forms, storage capacities, the costs of checking and making copies, etc.
Before the trial of first instance started, Beijing XX Information Service Company provided the personal information required by the plaintiff in the form of a sheet and links. The court recognized the act of the defendant and dismissed the claims of the plaintiff. Refusing to accept the judgment, the plaintiff filed an appeal. The court of second instance upheld the original judgment, despite some corrections on the part concerning the litigation cost.
Personality Rights-related Injunction Case: Personality Rights-related Injunctions Can Be Issued Against Actors Continuing to Commit Infringement During Litigation Process
—— Dong X v. Xiao X over Internet Infringement Liability Dispute
In this case, the Beijing Internet Court issued its first injunction against the infringement of personality rights. In cases involving cyber violence, with the rapid spreading of infringing information in the network, infringing acts may cause irreparable harm to victims if not stopped in a timely and effective way. Amid this background, it will be more beneficial to stop infringing acts and protecting the legitimate rights and interests of the victims in time by actively exploring the application of injunctions against infringement of personality rights in cases involving cyber violence. When applying the system of personality rights-related injunctions, the court usually considers the applicant, the possibility of violating laws, the urgency of issuing an injunction, the balance of interests, the scope of claims, etc. For infringing acts that may cause irreparable harm to the infringed, the timely issuing of personality rights-related injunctions will be conducive to safeguarding the legitimate rights and interests of the right holder in a timely and effective way.
The defendant Xiao X did more than 40 live broadcast events in nearly one year and in this process published a large number of videos targeting the plaintiff Dong X, which contained a lot of insulting words and vulgar language and were full of abuse and personal attacks. During the trial of the case, after the interpretation made by the court, Xiao continued to make infringing remarks in the form of regular live broadcast every night and disclosed several digits of Dong’s identity number, due to which Dong filed an application to the Beijing Internet Court for a personality rights-related injunction.
[Key Points of Adjudication]
Article 997 of the Civil Code of the People’s Republic of China has stipulated that where a person of the civil law has evidence to prove that an actor is committing or is about to commit an illegal act that infringes upon his personality rights, and that failure to timely stop the act will cause irreparable harm to his legitimate rights and interests, the person has the right, in accordance with law, to request the people’s court to order the actor to stop the act.
According to the evidence produced by the plaintiff Dong X and the defendant Xiao X and the ascertained facts, Xiao published a large number of videos in the form of live broadcasts in nearly one year which contained a lot of insulting words, and it was highly possible that the content therein was targeting the plaintiff Dong X. After the court made interpretation to Xiao in court, Xiao continued to make insulting remarks in the form of regular live broadcast every night, and it was highly possible that the content therein was targeting Dong. Given Xiao’s past acts and the actual situation of this case, it was more likely that Xiao was committing infringement and would continue to commit infringement. In addition, the view counts of the live broadcast videos were quite high. If not stopped in time, the infringement would significantly increase the plaintiff’s burden of safeguarding the rights thereof, leading to further expansion of the scope of the infringement’s impact and the consequences of the harm.
A thorough view of the content of Xiao’s live broadcasts showed that Xiao used insulting words many times with vulgar language, and most of the content was comments on the right and wrong of others, without other substantive content. Issuing a personality rights-related infringement injunction against the infringing act involved was conducive to regulating the online words and deeds of netizens and maintaining a clear cyberspace order.
The court ordered that Xiao X shall immediately stop publishing content that would infringe Dong X’s right to reputation in the account involved, and the ruling on the personality rights-related injunction shall take effect when it was served on the defendant. At present, the defendant has stopped publishing infringing content.
Case of Girl Abuse Video Being Posted Online: Exercising the Right of Supervision by Public Opinion Shall Not Violate the Principle of “Maximizing the Interests of Minors”
—— Li X v. Wei X over Dispute of Infringement on Right to Likeness, Right to Privacy and Right to Reputation
It has been made clear through this case that in determining whether the act of an actor infringes the personality rights of a minor, the principle of “maximizing the interests of minors” should serve as the benchmark to solve related contradictions and conflicts, and the supervision by public opinion should also put the rights and interests of minors in the first place. This case was selected as one of the Ten Major Media Law Cases in China in 2020 and the Ten Major Events in the Rule of Law in China in 2020. The judgment of the case was awarded the second prize in the Online Mutual Evaluation and Selection Campaign of Excellent Judgment Documents of Beijing Courts and awarded as the “Outstanding Judgment Documents on Minors-related Trials in Beijing Courts in 2022”.
One morning in 2019, when Li X was crying because she didn’t want to go to school, her parents tied her to a tree to criticize her. Passerby Wei X captured the above process with his mobile phone and posted the video on a platform for spreading, which caused a heated discussion among netizens. The plaintiff Li X filed a lawsuit to the court on the ground that the photographer Wei X infringed her right to likeness, right to reputation and right to privacy, demanding that Wei X should stop the infringement, make an apology and compensate for the loss. The plaintiff Li also claimed that the operator of the platform, failing to respond in time when her father requested the deletion of the video and leading to further expansion of the loss arising from the infringement, should be jointly and severally liable with Wei X.
[Key Points of Adjudication]
In cases involving minors, the principle of “maximizing the interests of minors” shall serve as the benchmark to solve related contradictions and conflicts.
Minors, the future of the country and the hope of the nation, are not yet mature both physically and mentally. For this reason, China has specially formulated the Minor Protection Law to give them special care and put their protection first. The public has the right to make comments and criticize inappropriate behaviors in society, but such criticism should be limited to a certain extent. In particular, when minors are involved, their rights and interests should be put in the first place. In determining whether the act of the actor infringed the personality rights of Li, the court shall take the principle of “maximizing the interests of minors” as the benchmark to solve related contradictions and conflicts and make judgment after comprehensive consideration of the occupation of the actor, the scope of impact, the degree of fault, as well as such factors as the purposes, methods, and consequences of the act.
People have the right to privacy even in public places.
Although privacy emphasizes keeping private, it does not mean that activities conducted in public places do not necessarily constitute privacy. If these activities carried out in a specific public place are only known to some people and, once widely publicized, would cause great harm to the personality interests of the right holders, they should also be protected as privacy. Therefore, whether privacy exists and what its scope is should be defined from the perspectives of the will of the right holders and the general reasonable cognition of the society. In circumstances where the right holder is a minor, the actor should perform a higher duty of care so that the legitimate rights and interests of minors are protected to the maximum extent. In this case, first of all, the parents of the minor explicitly opposed the defendant’s shooting; second, the spreading of the video by the defendant expanded the scope of the plaintiff’s privacy being known; third, the video captured the girl’s underwear. Therefore, the court found that the infringement of the right to privacy did exist.
The court determined that the defendant violated the plaintiff’s right to likeness and right to privacy and ruled that the defendant shall apologize to the plaintiff and compensate the latter for mental distress and economic loss as appropriate.
Neither party appealed after the judgment of first instance was made, and the judgment has come into force.
Case of Right to Likeness over Body Parts: Identifiable Pictures of Body Parts Shall Fall in the Protection Scope of the Right to Likeness
—— Liu X v. Beijing XX Service Company over Right to Likeness Infringement Dispute
This is a case that involved a new type of infringement of the right to likeness after the implementation of the Civil Code and was tried by applying the latest provisions of Book Four: Personality Rights of the Civil Code. The judgment has made it clear that the close-ups of body parts, though generally not enough for the public to clearly identify them as belonging to a specific natural person, can be determined as identifiable if the pictures and texts provided are enough for the public to associate the character reflected by the media with a specific natural person. The judgment of this case has embodied the legislative spirit of substantive and complete protection of citizens’ right to likeness, which will facilitate the public’s understanding of the positive changes in the protection of the right to likeness and promote the formation of a law-abiding atmosphere of respecting other people’s likeness.
The plaintiff Liu X is a well-known track and field athlete. The defendant is the authenticated operator of the WeChat official account involved in the case. On May 8, 2015, the defendant published an illustrated article entitled “Even an Ordinary Man Can Fly and Become a Great Man” on the WeChat official account operated thereby, in which 9 pictures were used, including 1 close-up picture of face and 8 close-up pictures of body parts like the head, limbs and trunk (specifically including 1 close-up of left eye, 1 close-up of mouth, 1 close-up of right ear, 1 close-up of hand, 2 close-ups of feet, 1 close-up of chest and 1 close-up of back). All the 9 pictures are marked with words. At the beginning of the article there was the following text description: “He came into contact with hurdling at the age of 13; he won the golden medal in the Athens Olympics in 2004, breaking a record; he then broke the world record with the result of 12.88 seconds in Lausanne, Switzerland in 2006, making all yellow people proud and elated!” At the bottom of the article, there was such text description as “Not just Liu X, but every worker and every ordinary person is like this”. At the end of the article, there were publicity content like “XX Domestic Helper Platform: tens of thousands of housemaids, maternity matrons, and babysitters waiting online for your selection” and other information like WeChat QR code. In addition, as of April 28, 2022, the article involved had been deleted. A comparison showed that the pictures published in the article involved were the same as those published in the Weibo account of a well-known sports brand on April 7, 2015.
[Key Points of Adjudication]
In determining an infringement of the right to likeness: first, it is necessary to distinguish whether the situation involved meets the three elements of likeness: “external image”, “reflected on a media” and “identifiability”, that is, to clarify whether the defendant implemented the act of using the likeness; and second, it is necessary to analyze the possibility of reasonable use and whether lawful authorization has been obtained, that is, to clarify whether the defendant’s act of using the likeness was justifiable.
Did the use of local close-ups constitute the use of likeness?
“External image” is not limited to facial image, but also covers other images, as long as they can present the external image of a natural person and allow others to clearly recognize that that external feature belongs to a specific natural person. “Reflected on a media” covers such media as video recordings, sculptures, and drawings. Differences in the media do not affect the judgment of infringement of the right to likeness. “Identifiability” is the essential feature due to which the right to likeness belongs to a phenotypic personality right. In determining the identifiability of the likeness, one should consider the identifiability of the media involved itself as well as whether the words, pictures and other contents provided for the media of the likeness would make the general public associate the image reflected by the media involved with a natural person. When used alone, close-up pictures of body parts are generally not enough to make the public clearly recognize that the relevant parts belong to a specific natural person, but considering that the factors such as pictures and text descriptions in the use form of the media were enough for the general public to recognize the close-up pictures were of the plaintiff himself, the close-up pictures can be determined as having met the standard of identifiability.
Did the use of likeness belong to reasonable use if the use did not cause derogation of the image?
There are five circumstances of reasonable use of the right to likeness, including use for personal study, art appreciation, or scientific research; use for conducting news reporting; use for a State organ to perform its responsibilities in accordance with law; use for demonstrating a specific public environment; and use for protecting the public interests. This stipulation aims to coordinate natural persons’ rights and interests to likeness with the public interests, including the promotion of social progress, cultural development, freedom of the press, social public interests and national interests. The defendant argued that its act did not constitute infringement because the content of the article involved was praising Liu’s fighting spirit, which did not derogate the image of the plaintiff. However, its act did not belong to any circumstances of reasonable use. A comparison with even the closest circumstance, i.e., use for personal study, art appreciation, or scientific research, would show that the defendant’s act of posting the plaintiff’s likeness pictures on the Internet so that anyone could obtain them at any time does not meet the constitutive requirement of “using publicly available images of the person holding the right to likeness to the extent necessary” as required for that circumstance.
The defendant shall make an apology to the plaintiff and compensate the latter for the economic loss of RMB 5,000.
Case of Mobile Phone Number Leakage in Hit TV Series: Intruding on Other Persons’ Private Life by Improper Disclosure of Contact Information Constitutes Infringement
—— Huang X v. Khorgos XX Film Company and Zhuhai XX Film Company over Right to Privacy Infringement Dispute
With the development of information technology and digital technology, as well as the implementation and popularization of the policies of “real-name registration systems” for mobile phone use and Internet access, private mobile phone numbers are widely used to create accounts on various social media applications, which are objectively more closely related to people’s private life. In this case, from the perspective of protecting the rights and interests to undisturbed private life, indirectly disturbing others in a physical way by improperly disclosing private mobile phone numbers was determined as an infringement of the right to privacy, thereby clarifying the specific criteria for determining the infringement of the right to undisturbed private life as a right to privacy.
Huang’s private mobile phone number registered with Huang’s real name was displayed in the broadcast scenes of a hit network TV series, due to which Huang was frequently disturbed by phone calls and WeChat messages from strangers. Huang, claiming that Khorgos XX Film Company and Zhuhai XX Film Company which produced the TV series infringed on her undisturbed private life, filed a lawsuit to the court demanding that the two companies shall eliminate the influence, make an apology and make compensation for the mental distress thereof.
Khorgos XX Film Company held that: the mobile phone number involved in the case was purchased and used by an authorized worker of the crew during the filming of the network TV series involved and, after being no longer used by the crew, sold again by an operator, which the producer did not know, and thus the producer had no intention of infringement; after receiving the plaintiff’s complaint during the broadcast, it took measures immediately to blur out the scenes involved and informed the plaintiff of the situation, without any act of laissez-faire, and thus it had no subjective fault; the evidence submitted by the plaintiff could not prove that the disturbing phone calls and WeChat messages were related to the network TV series or that the plaintiff’s normal life was disturbed, and serious mental distress was caused thereto. Zhuhai XX Film Company held that it was only the presenter of the network TV series and did not participate in the actual production thereof, thus having no obligation to review and supervise the content of the TV series.
[Key Points of Adjudication]
This case happened before the implementation of the Civil Code, when the concept of right to privacy was not clearly defined by the law. With reference to the provisions of the promulgated and to-be-implemented Civil Code and previous judicial practice, it can be confirmed that privacy usually includes two aspects: the undisturbed private life of a natural person; and the private space, private activities, and private information of the natural person that he does not want to be known to others. Obviously, the protection of undisturbed private life (the right to undisturbed private life) is included in the right to privacy system.
Since Huang’s mobile phone number does not belong to private information, the leakage thereof will not constitute an act of infringing the right to privacy by processing private information. The undisturbed private life refers to a natural person’s right to maintain a stable and quiet private life and reject the improper intrusion by others; it includes not only a stable and quiet life without physical intrusion by others through phone calls, text messages, social media apps, etc., but also a state of private life without the danger of being significantly intruded on. Therefore, the subject of infringement can be the person who directly commits the physical intruding act, or the person who does not directly commit physical intruding act but causes the right holder to be disturbed by others or put the right holder at a significant risk of being disturbed. The standard of determination must be whether the state of personal life of the right holder has changed due to the intervention of this act, and whether this change has caused a certain degree of intrusion on the person’s private life. The judgment of “a certain degree of intrusion” here shall not be based on the personal feelings of the party involved, but on the feelings of general rational people after considering social customs and other relatively objective factors. Furthermore, the principle of fault liability shall apply to the infringement of the right to undisturbed private life. In determining the fault of the actor, one should consider factors like the nature of the act, the predictability of the harm caused by the act and the cost of avoidance, as well as the usage of trade to reasonably determine whether the actor has fulfilled the corresponding duty of care.
In this case, whether the accused act infringed the plaintiff’s right to undisturbed private life can be examined from the following four aspects:
Regarding the harming act
In this case, the producer of the network TV series involved in the case used the mobile phone number involved in the TV series for the role therein without Huang’s knowledge and made it public on the Internet, which may cause many netizens to disturb Huang by phone calls, social media applications and other means, putting Huang in danger of being disturbed. No matter whether there were strangers actually disturbing Huang or not, the act, going against Huang’s wish for her private life not to be disturbed by others, would make Huang suffer the fear and pressure of being disturbed, which constituted an intrusive intervention in her personal life, involving an infringement of the due undisturbed state in her private life.
Regarding the consequences of the harm
According to the evidence on file, it was not difficult to judge from the way and the scope the mobile phone number involved was used and made public that Huang’s private life was obviously in danger of being intruded on by strange netizens. In fact, after the number was made public, Huang received a number of strange phone calls and friending applications on WeChat when Huang was relatively busy with study and work just before graduation at that time. It can be well imagined that the frequent intrusions by phone calls and WeChat messages by many people in a short period of time had a huge negative impact on Huang’s life. In addition, after the producer blurred out the scenes broadcast on the authorized websites, Huang still received disturbing WeChat messages from strange netizens, which showed that there was a potential risk of continued intrusion. These intrusions obviously exceeded the limit that Huang should tolerate and destroyed Huang’s undisturbed private life.
Regarding the causal relationship
In this case, both the significant risk of Huang’s private life being intruded on and the actual intrusions by netizens were caused by the improper disclosure of the mobile phone number involved in the network TV series and the setting of the number as being owned by the role in the TV series which aroused the curiosity of netizens watching it. Therefore, there was an inevitable connection between the accused act and the consequences of the harm suffered by Huang, which constituted an objective causal relationship.
Regarding the subjective fault
According to the evidence on file: first, the producer used the mobile phone number involved in the network TV series involved without taking any risk prevention measures. Although the producer argued that it entrusted a worker of the crew to buy the mobile phone number involved during the shooting process and was entitled to use it, this argument cannot be proved by conclusive evidence and was not recognized by Huang. Therefore, the court did not ascertain this argument. Second, even if the producer, as it claimed, being a professional film and TV series production unit had the ability to understand and judge the normal cycle of a film or TV series from production to broadcast, the fact that Huang was possessing the mobile phone number involved then showed that the period of legal use claimed by the producer was obviously shorter than the normal production and broadcast cycle of the TV series involved. Third, existing technologies and artistic expression methods could provide the producer with a variety of methods and choices to deal with the problems with the presentation of real information to reduce the risk of infringement. Considering the facts of this case, the relevant processing methods were simple and easy to obtain, not requiring much too high production costs of the producer. Based on the above analysis, the producer, in using the mobile phone number involved in the scenes of the network TV series, had the subjective fault as it failed to fulfill the corresponding duty of care and took a laissez-faire attitude towards the possible infringement risk.
To sum up, Khorgos XX Film Company and Zhuhai XX Film Company used the mobile phone number now legally owned by Huang for the role in the TV series without the plaintiff’s knowledge and made it public on the Internet, which not only caused many netizens to disturb Huang by phone calls, social media applications and other means, intruding on her communication, but also put Huang in a significant danger of being disturbed and feeling fear and pressure, which was against Huang’s wish for her private life not to be intruded on by others. Khorgos XX Film Company and Zhuhai XX Film Company used the mobile phone number involved in the network TV series involved without taking necessary risk prevention measures or fulfilling the corresponding duty of care, causing Huang’s private life to be intruded on, so they had the subjective fault and committed infringement on Huang’s right to privacy.
The defendants Khorgos XX Film Company and Zhuhai XX Film Company shall compensate the plaintiff Huang X for pains and suffering of RMB 3,000 and attorney’s fees of RMB 1,000 within ten days after the effective date of the judgment.
Neither party appealed after the judgment of first instance was made, and the judgment has come into force.
We-media Slandering Article Case: We-media Should Not Become the “Black Ghostwriter” in Unfair Competition
—— Beijing XX Real Estate Agency v. Yang XX over Right to Reputation Infringement Dispute
We-media operators, when expressing their opinions through we-media, need to based their voices on objective facts. Publishing false information for the purpose of gaining traffic as well as monetizing popularity will infringe on others’ right to reputation. Market operators, when using we-media for online promotion, must act within the scope permitted by laws and regulations and must not fabricate or spread false information or even hire “black ghostwriters” to publish “slandering articles” for the purpose of slandering competitors and disrupting the market competition order. This case has “fought” the hidden industrial chain of “slandering articles”, leaving bad we-media reaping the consequences and guiding we-media to establish public trust therein and maintain a healthy market competition order.
The plaintiff is a well-known domestic real estate agency which registered its trade name as a trademark that gradually becomes a well-known trademark in China.
On July 15, 2018, the article involved in the case was published on a WeChat official account. The article narrated, analyzed and evaluated the negotiation between a real estate developer in XX city and an enterprise indirectly held by the plaintiff on the distribution of a real estate project in 2018, and referred to the enterprise with the plaintiff’s trademark. The plaintiff held that this article, taking the plaintiff’s trademark as the target of attack, was full of strongly derogatory and insulting words like “fraud”, “shameless”, “greedy” and “robbery” and fabricated false scenarios of disrupting market like “fighting” and “stealing clients”, which was deliberately uglifying, insulting and derogating the plaintiff’s reputation. In addition, the article was published the day before the enterprise indirectly held by the plaintiff signed the distribution agency contract of the above-mentioned real estate project, and as soon as it was published an enterprise in the same industry asked its employees to forward the article. The plaintiff suspected that the publication and spreading of the article involved were instigated by a competitor, with the intention of creating negative news of the plaintiff to influence the signing of the contract. The operator of the we-media was Yang XX. The plaintiff claimed that Yang XX shall apologize and compensate the plaintiff for the property loss and reasonable expenses of over RMB 600,000 in total.
Yang argued that he should not bear tort liability because: though the WeChat official account was registered and used thereby, the article involved was published for friends and did not specifically refer to the plaintiff; the content of the article was comments made on the real estate industry within a tolerable range, which belonged to the expression of personal opinion, not insulting or slandering; the WeChat official account had little influence, and the article involved was deleted in time, so there was no adverse effect on the plaintiff.
[Key Points of Adjudication]
Yang’s publication of the article involved damaged the plaintiff’s reputation.
In the article involved, there was negative evaluation on the distribution business of the specific real estate project engaged by the enterprise indirectly held by the plaintiff, and the plaintiff’s trademark was used to refer to the enterprise. Therefore, the article involved in the case involved the corporate interests of the plaintiff, due to which the plaintiff had the right to file the lawsuit of this case. After its publication, the article involved was enough to lead the readers to form a negative evaluation of the plaintiff’s business operations, resulting in damage to the reputation thereof.
Yang XX has subjective fault by publishing the article involved.
As the registered and actual user of the WeChat official account involved in the case, Yang XX should bear the burden of proof for the authenticity of the article and the source of information. Even though Yang refused to disclose the true intention of publishing the article involved, the court can still identify the true purpose thereof based on the content of the article involved and the evidence on file. Yang published and spread the article involved the day before the enterprise indirectly held by the plaintiff signed the real estate project distribution contract, pointing out that the enterprise had improper acts like suppressing peers and deceiving clients, but could not prove the source of information. His intention of discrediting the reputation of the plaintiff and influencing the signing and performance of the distribution contract was quite obvious. The strongly derogatory and insulting words in the article had gone beyond the scope of reasonable criticism and supervision by public opinion, making Yang subjectively at fault.
Yang’s publication of the article involved caused economic loss to the plaintiff.
The trademark of an enterprise also represents the brand thereof, and the brand value of the enterprise is related to the interests thereof. An enterprise not only enjoys sales opportunities brought by its premium brand, but also suffers negative impact on its assets and operations due to a brand crisis. Though not directly affecting the distribution business of the enterprise indirectly held by the plaintiff, the article involved was widely spread through we-media channels, allowing relevant consumers, suppliers, media and even the public to receive negative comments on the plaintiff’s corporate brand, which seriously affected the reputation of the corporate brand and caused potential economic loss to the business operations thereof. Yang infringed on the plaintiff’s right to reputation and should bear corresponding legal responsibilities.
The defendant Yang XX shall make a public apology to the plaintiff and compensate the latter for the property loss of RMB 200,000 and the reasonable expenses of RMB 41,000, which totaled RMB 241,000.