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On appeal, Tianyilian Company objected to the "data anomaly" on the basis of Tencent's violation judgment, and explained the login of multiple accounts on the same device, the authenticity of the data, and the criteria for judging the data anomaly.
About a large number of accounts logged in through the same device
Tianyilian proposed that one of the basic bases for Tencent's judgment of "abnormal user data" is "the situation where multiple accounts register and log in through the same device (an IMEI number)", which is based on error, because the game operating environment in which the two are judged is not the same:
- Tencent took "IMEI number" as the basis for its judgment and described in detail in evidence 15 that "IMEI number" is the unique identification mark of mobile devices (mobile phones);
- In the user environment of "Pepper Kombat" operated by Tianyilian, the game runs on the user's smart TV (or smart set-top box), rather than the "mobile device" described by Tencent;
- These smart TVs basically do not have an IMEI number.
- Tencent's judgment based on the experience of the game operating on the mobile terminal is unfounded.
For the reasons for this situation, Tianyilian Company explains as follows:
Running a game on a TV is not a person, but a family, even relatives and friends, so "multiple accounts log in through the same device" is normal.
However, the court held that the interpretation was unreasonable - "even if several family members of the player log in to the same mobile communication device, there should not be a situation where as many as thirty or more players are logged on to the same mobile communication device".
Data authenticity issues
Tianyilian questioned the authenticity of the background data on which Tencent relied for the violation judgment, mainly based on the following reasons:
- Tencent's processing of data has become process-oriented and professional, and it has the ability to tamper with and delete data;
- The abnormal data values provided by the Tencent Company shall be formulated by the Tencent Company itself and shall be under the management and control of the Tencent Company, and Tianyilian Company shall not be able to know or obtain any data;
- The Tencent Company only uses the Cooperation Agreement and the data produced unilaterally by it as the basis for settlement, and unilaterally determines that Tianyilian Company is in breach of contract and stops settlement, and Tianyilian Company does not have any right to object;
- The Tencent Company did not provide Tianyilian with any user data that could be used for self-examination, including the user anomaly data statistical table;
The court held that Tianyilian Company claimed that Tencent could tamper with or delete, but did not submit evidence to prove that Tencent Company had tampered with or deleted, nor did it point out what kind of abnormalities in the data provided by Tencent Company reflected the possibility of tampering or deletion, and Tencent Company had submitted the data during the dispute period through notarization, and such data could be recognized.
The criterion problem for determining data anomalies
Data is the external manifestation of behavior, and After analyzing the data, Tencent believes that there is an "abnormality" and judges that the "abnormality" is caused by the violation. Tianyilian questioned Tencent's criteria for determining "data abnormalities", and the arguments were as follows:
First, there is no definition of "data anomaly" in law or contract, and Tencent has never published or informed the criteria for data anomaly;
Second, even if the standard is informed, because the data is stored in tencent's servers, it is impossible to understand and verify the abnormal data;
Third, even if there are data anomalies, because the causes that cause the data anomalies are diverse, the causal relationship between the breach and the anomaly cannot be locked.
This argument is valid, but the citation has limited basis. Tianyilian Company quoted the relevant definition of Baidu Encyclopedia, that is, "outlier (outlier) refers to a set of measured values that deviate from the average value by more than twice the standard deviation, and the deviation from the average value exceeds three standard deviations, which is called the abnormal value of the height abnormality", proposing that it has no way or way to verify and understand the facts of the data abnormality, and does not know whether the calculation standard of the data anomaly refers to the above "double" and "triple".
In short, Tianyilian Company believes that the data anomaly unilaterally determined by Tencent Company does not have any contractual or factual basis; There are also many variables that affect data anomalies, and Tencent cannot prove a direct causal relationship between data anomalies and Tianyilian's behavior; In the case that Tianyilian Company was unable to predict, control, inquire and check the abnormal data, and in the case that Tencent Company did not give Tianyilian any remedies or investigation channels, the court of first instance ruled that Tianyilian Company bore all liability for breach of contract, which was obviously unfair.
Court view
The court of second instance held that Tianyilian's claim was not established, mainly because:
First, the parties have signed game promotion contracts many times, not for the first time, and have a full understanding of the cooperation model, cooperation content, and purpose of cooperation. Tianyilian Company is very aware that Tencent Company uses the data produced unilaterally as the basis for settlement, and did not raise objections during the cooperation period, and the two parties have been settling in accordance with the model of "Tencent Company calculates the share based on the channel promotion data saved in its background (the channel player recharge amount), and Tianyilian Company accepts the settlement amount calculated on this basis".
Second, the use of unilaterally produced data as the basis for settlement is caused by objective reasons, that is, King of Glory is a game developed and operated by Tencent, and the various data of the game are kept and held by Tencent, and Tianyilian Company knows and accepts it, and has never raised objections.
Third, Tianyilian Company claimed that it could not audit and verify, but Tencent submitted its internal storage of Tianyilian Company channel King Glory Game promotion data information in the first instance stage, and Tianyilian Company questioned the authenticity of the data, claiming that Tencent could tamper with and delete the data, but 1) did not submit evidence to prove it, and 2) did not point out which of the data could reflect the abnormalities that could be tampered with and deleted. Therefore, the court recognizes the data for the period of the dispute that has been submitted by means of notarization.
In the end, the Court of Second Instance held that Tencent's process of recording, supervising, verifying and notifying the promotion was not improper, and it was not improper to use the game data in its own custody and possession as the basis for judging.
Data is an external manifestation of user behavior, and when evidenced by unilateral custody, holding and control of "data", it will face problems such as authenticity and unclear judgment standards, the former can be handled by introducing third-party data custody and supervision, forensic identification, technical experts, blockchain technology and other means, and the latter directly affects the judgment of the focus of the dispute. Combined with the cases related to the opening and hanging of the game written some time ago and the promotion of the Sina News App, the cost and feasibility of the processing means are different, but the problem of the basis of the contract must be solved first, that is, the judgment basis and judgment standard are clearly agreed in the contract.
Reference: Civil Judgment of the Intermediate People's Court of Shenzhen Municipality, Guangdong Province, May 6, 2020 (2019) Yue 03 Min Zhong No. 20183