The latest update released by actor Tao Hong on social platforms was on April 9, the content is to cheer for Shanghai, but netizens in the comment area do not seem to buy it. "Is Zhang Ting's thing true?" The first comment questioned. In the past two days, Tao Hong has been on the hot search one after another, and the content is related to the fact that she was accused of paying 420 million yuan in dividends from Shanghai Dalway Trading Co., Ltd. (hereinafter referred to as "Dalway Company"), which is operated by Zhang Ting and his wife.
Although there are reports that Tao Hong has requested to withdraw shares from the company, and her broker also replied that she did not know about it, Tao Hong and Zhang Ting have been known as girlfriends for many years, and have repeatedly stood for the brand "TST Court Secret" under the other company, and even directly become a shareholder of Dalway Company, the main company of the suspected pyramid scheme brand "TST Court Secret", which has made her also fall into the whirlpool of public opinion after the Suspected Pyramid Scheme incident of Zhang Ting and his wife.
In addition to being blamed, whether Tao Hong will be legally implicated because Zhang Ting and his wife are involved in pyramid schemes is also the focus of public attention. Upstream News (e-mail: [email protected]) reporter interviewed 5 lawyers on this, and they expressed their views on whether Tao Hong would be jointly and severally liable because Of Zhang Ting and his wife were involved in pyramid schemes, whether celebrities should also be held responsible for participating in the platform and publicity.
Tao Hong and Zhang Ting interact frequently. Image source/ Tao Hong Weibo
Whether or not to participate in illegal business operations is the focus
Whether Tao Hong will be implicated in the suspected pyramid scheme of Zhang Ting and his wife is another hot spot of public concern after the suspected pyramid scheme of Zhang Ting and his wife's Darway company. The lawyers interviewed by the upstream news reporter all believe that to determine whether Tao Hong will be implicated because of this matter, it is necessary to determine whether she is really involved in the actual operation of the company and whether she is an insider of the pyramid scheme.
"If the shareholder does not actually participate in the business activities, it only involves the issue of profit recovery; if it actually participates in the operation, it may bear the corresponding legal responsibility as a participant in the MLM activities." Wu Liwei, a lawyer at Beijing Dacheng Law Firm, told upstream reporters that he believes that whether he actually participates in the business is the focus of judging what kind of punishment Tao Hong will receive.
Liu Kai, a lawyer at Beijing Zhongwen (Changsha) Law Firm, said that if the company in which the shares are characterized as pyramid schemes, whether the shareholders should bear legal responsibility depends on whether the shareholders actually participate in the pyramid schemes, and if the shareholders are identified as the organizers and leaders of the pyramid schemes, they need to bear corresponding legal liabilities, even criminal liabilities.
Liu Wenfang, a partner at Beijing Yizhun Law Firm, stressed that before judging whether Tao Hong has joint and several liability, it is necessary to pay attention to the current status of the pyramid scheme case involving Zhang Ting and his wife. Liu Wenfang introduced that the current state of the case is that the enterprise has been punished, and the penalty decision made by the industrial and commercial department is based on the "Administrative Punishment Law of the People's Republic of China" and the "Regulations on the Prohibition of Pyramid Schemes", but whether the organizational personnel of the enterprise constitute a crime is still under investigation, and whether the shareholders participate in the management of the enterprise and whether they participate in the illegal and criminal acts of pyramid schemes are still under investigation. Determination of a public trial by the court.
"Shareholders legally point out that the capital is not necessarily involved in the management of the company, so if they are only shareholders and have no other illegal acts, they will not be jointly and severally liable." Lu Yiguang, a partner at Shanghai United Law Firm, has reservations about whether Tao Hong is currently involved in pyramid schemes.
Whether the 420 million dividend will be recovered
Tao Hong's involvement in The Company stems from the fact that Zhang Ting and his wife have been investigated and punished for suspected pyramid schemes since the end of December 2021.
The upstream reporter noted that on April 11, 2022, Dalway was identified as a pyramid scheme by the law enforcement department and fined. On April 19, Dalway was suspected of pyramid schemes, resulting in the seizure of 96 properties under the company's name.
On April 21, the upstream news reporter found that Tao Hong still held 1.93% of Shanghai Darway Trading Co., Ltd., with a subscription amount of 4.474 million yuan. Beijing Taoran Garment and Apparel Co., Ltd., wholly owned by Tao Hong, holds 4.7% of shanghai Dalway Trading Co., Ltd., with a subscription amount of 10.906 million yuan.
According to media reports, the 4.7% of the shares held by Tao Hong's wholly-owned company have received dividend cash from Darway Company since 2016, of which the dividend income in 2018, 2019 and 2020 is 260 million yuan, which is a dividend of 260 million yuan that Darway is in the MLM stage. At present, Tao Hong has requested to withdraw its shares from the company.
In response to Tao Hong's dividends, many lawyers interviewed stressed that the key to how to deal with its dividends is to judge whether its dividends are illegal gains. Lawyer Wu Liwei said that for the dividends he received in the company, the company's legal operation part of the income will not be affected by the case, and the dividends that are confirmed to be the profits of pyramid schemes will be recovered as the illegal and criminal gains of the criminal case.
Zheng Hongtao of Beijing Ying zhou law firm made a detailed classification of the dividends that Tao Hong may be involved in: "The first situation is that she does not know that the company's operating model is suspected of illegal pyramid schemes, and she has dividends as a shareholder, because the dividends are derived from illegal gains and can be recovered." In the second case, knowing that the company's operating model is an illegal pyramid scheme, and also buying shares and paying dividends, then not only must this dividend be recovered, but also may bear fines. In the third case, if this company's operating model is suspected of violating the law and rising to the level of crime, she may not only have to recover her illegal gains and receive dividends in the company, but also bear criminal liability and fines. ”
Tao Hong's Weibo still retains the relevant content of "TST Court Secrets". Image source/ Tao Hong Weibo
Whether there is joint and several liability for platforms and publicity
Nowadays, the video of Tao Hong's "TST Court Secret" platform for the brand can also be searched on the Internet, and several promotional content for the brand are still preserved in her Weibo. These "evidences" that exist on the Internet make the public believe that Tao Hong has long been involved in the operation of the "TST Court Secret". Public information shows that in addition to Tao Hong, there are several celebrities who have stood for the publicity activities of "TST Court Secret", and it is precisely because of their endorsement that the public has more trust in "TST Court Secret", and the brand team has gradually grown in recent years.
Lawyer Zheng Hongtao believes that this phenomenon needs to be viewed at two levels, the first level is the publicity of the product, and the second level is the publicity of the company's operating model. "If it's just publicity for the product, it depends on whether she has false publicity behavior." Zheng Hongtao said that false publicity behavior refers to the endorsement and exaggeration of product efficacy without using this product at all, or knowing that the product has certain problems, but also to do endorsement publicity for it, which is a civil liability; and the second level of publicity is to bear joint and several liability, administrative liability and even criminal liability for illegal pyramid schemes.
Lawyer Liu Kai said in response to the phenomenon that celebrities are the brand platforms of Zhang Ting and his wife's company, whether these stars have to bear legal responsibility, the key depends on whether their platform activities, Weibo publicity, etc. belong to the category of advertising endorsements, if they belong to the legal sense of the spokesperson, then they need to bear corresponding legal responsibilities.
Liu Kai also detailed the scope of his responsibility: advertising spokespersons who recommend and prove goods and services in advertisements should be based on facts and comply with relevant laws and regulations, and must not make recommendations and proofs for goods they have not used or services they have not received. "If the spokesperson knows or should know that the advertisement is false and still makes a recommendation certificate, causing damage to consumers, it shall bear joint and several liability." Where spokespersons recommend goods or services to consumers in false advertisements or other false publicity of goods or services related to consumers' lives and health, causing harm to consumers, they shall bear joint and several liability together with the proprietors providing the goods or services. Liu Kai said.
Platform endorsements must also consider business compliance
This time, Tao Hong was involved in the pyramid scheme incident of Zhang Ting and his wife, which once again triggered a discussion about celebrity platforms and endorsements. The upstream news reporter learned that on December 13, 2021, the Shanghai Changning District Market Supervision and Administration Bureau made a special notice for celebrity endorsements - "Shanghai Changning District Market Supervision and Administration Bureau on Carrying out Comprehensive Governance in the Field of Culture and Entertainment".
An important content in the notice is "to carry out special rectification of advertising endorsement activities". The "Notice" emphasizes the need to strictly investigate and deal with illegal acts that are known or should be known to be false in advertising content, but still make advertising endorsements for relevant goods and services. It is also necessary to severely crack down on illegal advertising endorsements, illegal use of absolutized language, illegal publicity of the health benefits of ordinary foods, and publication of false information that deceives or misleads consumers in the process of online live broadcast marketing.
Liu Wenfang said that from a legal point of view, when a celebrity endorses, its star team or brokerage company should need to conduct a preliminary investigation of the products it endorses, such as "whether it is counterfeit and shoddy goods, whether there is a false description and other behaviors".
In view of what matters celebrities need to pay attention to when endorsing, Liu Kai said that when celebrities endorse commercial advertisements, they should adhere to the correct advertising orientation, protect the rights and interests of consumers, maintain the order of the advertising market, and give full play to the positive role of celebrity endorsement commercial advertisements in promoting consumption upgrading, activating market economy, and leading good fashion.
Liu Kai believes that first of all, celebrities should pay attention to the limitations of the scope of endorsement when endorsing. Celebrity endorsement commercial advertisements shall strictly follow the "Advertising Law of the People's Republic of China" on the scope of endorsement goods and services, and must not endorse products or services that are prohibited from being produced or sold, as well as goods or services for which advertising is prohibited.
Secondly, celebrity endorsements need to pay attention to the objects of endorsement. Liu Kai said that before signing the endorsement contract, the star should conduct the necessary background investigation of the endorsement enterprise, verify whether the endorsement entity has legal, complete and effective production and operation qualifications, check whether the endorsing goods or services meet the quality norms and regulatory requirements, inquire into the judicial proceedings, administrative penalties and other relevant negative information of the endorsement entity and the commodity service, try to seek and listen to professional legal opinions or assessment suggestions, avoid endorsing the seriously untrustworthy and illegal enterprises, and avoid speaking for the endorsement of the endorsing goods or services knowing that there are problems with the endorsement goods or services.
Liu Kai also stressed that celebrity endorsement commercial advertisements should adhere to the principle of first experience, deep understanding, and future speech, understand the basic situation of the goods or services to be endorsed, personally experience the use of the endorsed goods or received services, ensure that the declared efficacy and other content are consistent with the actual experience, and save evidence related to the experience process.
Zheng Hongtao said that through the Tao Hong incident, it can be seen that the compliance problem of the enterprise is also very important, and it is suggested that when the celebrity endorsement should pay attention to the compliance report of the endorsement company, "With the compliance report, you can do it in your heart." Just like Tao Hong's endorsement of this matter, whether the company is operating in accordance with the law, she may not have considered it at all. Zheng Hongtao believes that the concept of some spokespersons has not yet risen to the level of considering the compliance of enterprise operations.
Upstream journalist Wang Jingjing