Obligations and responsibilities of WeChat group owners
About the author
Zhang Xinbao
Professor at Chinese Minmin University School of Law
Vice President of the Network and Information Law Research Association of the China Law Society
This article is reproduced from the public number "Professor Plus"
As of June 30, 2022, WeChat and WeChat had 1.299 billion monthly active users, most of whom belonged to multiple group chats under different identities. The vigorous development of social media and online communities such as WeChat and QQ has greatly expanded the field of public consultation and dialogue, far beyond the reach of traditional one-way mass media, which facilitates freedom of speech, political participation, social relationship maintenance and expansion, interest mining, and life efficiency. However, communication technology and the Internet reduce the cost of information dissemination and illegal costs, online gambling, dissemination of pornographic materials, and online infringement occur frequently, and in terms of supervision, the state not only faces the practical problem of decentralization encroaching on state power and fragmenting governance, but also faces the value of protecting freedom and confidentiality of communication (Article 40 of the Constitution) and making it difficult to directly intervene in WeChat group chat messages.
In 2017, the Cyberspace Administration of China (CAC) issued the Provisions on the Administration of Internet Group Information Services, article 9 of which stipulates: "Internet group founders and managers shall perform group management responsibilities, regulate group network behavior and information release in accordance with laws and regulations, user agreements, and platform conventions, and build a civilized and orderly online group space." When Internet group members participate in group information exchanges, they shall abide by laws and regulations, interact in a civilized manner, and express themselves rationally. For the first time, the solution of "who builds the group is responsible" and "who manages is responsible" was proposed. The social WeChat group has thus become a typical epitome of the coordination of "law-structure-community norms-market" in virtual social governance, the role of private rights allocation in the social governance system, and the standard of security obligations under the risk society.
One
Overview of social WeChat groups and group owners
(1) The scope of social WeChat groups
There are various WeChat groups in life, including but not limited to family groups, friend groups, work groups, interest groups, purchasing groups, etc. The WeChat groups discussed in this paper focus on social WeChat groups, which are voluntarily assembled by members of society, independent of the government and other subjects, and their operation mode is autonomous, group boundaries are open, group behavior is consistent, and the purpose of group establishment is non-profit. [1] The standard of obligation applicable to social WeChat group owners applies to other types of WeChat group owners, who also follow their own unique rules.
So what is a social WeChat group? Equal subjects in life based on common interests and hobbies, interest groups established for the purpose of connecting feelings, family and friend groups, alumni groups, etc. are all listed for this, group members have a friendship relationship that does not need to be regulated by law in the act of building a group, and the group owner has a certain amount of autonomy and autonomy on matters such as group member management, organization of group activities, and group dissolution. This also excludes two types of situations: first, the establishment of WeChat groups for the purpose of achieving certain legal interests, including WeChat groups for the purpose of fulfilling contracts, such as online instant order grabbing or real-time interactive lectures; Owners' assembly groups and villagers' collective member groups that are necessary channels for participation in grassroots people's self-government. This type of WeChat group is subject to the adjustment of the Civil Code, the Contract Part, the Property Rights Part and other rules. Second, the establishment of WeChat groups aims to track and assign tasks to members of the organization and improve the efficiency of internal communication within the organization, typical such as the work group of enterprises, administrative organs and other units or departments. Such WeChat groups are subject to labor laws or other social norms.
(2) Definition of social WeChat group owners or managers
The WeChat group owner or manager is an organization or natural person who actually enjoys and exercises technical management authority such as modifying the group name, sending group announcements, group management (only the group owner or group administrator can manage, turning on the prohibition of modifying the group name, turning on group chat invitation confirmation, setting the group administrator), transferring the group owner, dissolving the group chat, etc., and they are usually the initiators of the WeChat group or the subjects who jointly manage the group affairs through the addition of the promoter. The owner or manager of a WeChat group may be the subject with the most social capital and the strongest mobilization ability in a WeChat group, such as big fans in the fan group and elderly people in the alumni association; This may not be the case, which generally occurs when the group is built face-to-face, or the network center node is transferred after the group owner builds the group. However, whether the technical status and social status of the WeChat group owner or manager are consistent does not affect the identity of the WeChat group owner or manager, but the legal liability borne in different infringement scenarios is different.
Two
The duty of care of social WeChat group owners
(1) Public law obligations of social WeChat group owners
Article 9 of the Provisions on the Administration of Internet Group Information Services requires founders and managers to bear management responsibilities in the sense of public law, mainly for the following reasons: First, the speech and behavior within WeChat groups are highly concealed. On the one hand, online platforms cannot objectively and legally conduct substantive review of all chats, but can only restrict them as a whole, so as to prevent large-scale crowd gatherings from endangering public interests and national security, and ultimately reducing the effectiveness of the state in using platforms to combat online infringement and illegal and criminal activities; On the other hand, the cost of discovering infringement by individuals increases, and there is insufficient incentive for private litigation. Second, WeChat groups are at the end of the organization in the social governance system, forming a stable structural social network and creating conditions for state intervention. In particular, when the state's law enforcement force is insufficient, the use of existing social networks to guide and supervise the core members of the group[2] can achieve better governance results.
However, public law obligations are different from civil law obligations of care and are not the focus of this article. The Provisions on the Administration of Internet Group Information Services are administrative rules issued by the Cyberspace Administration of China (CAC) and cannot be excluded from the appropriate regulatory norms that define the objects of protection under infringement law, and Article 9 not only protects the public interest (prohibition of gambling, dissemination of pornographic materials) but also provides protection for specific victims (reputation rights, intellectual property infringement, etc.), which meets the requirements of protective norms. However, this provision is too principled, does not specifically describe the behavioral obligations of WeChat group owners, and cannot play a role as a protective norm.
(2) The civil law status of social WeChat group owners
1. Managers of a particular cyberspace
The social relationship between people is divided into chain communication and circle communication, and WeChat groups belong to the latter. In circle communication, interpersonal activities have a clear "geographical boundary", and the crowd is concentrated in this virtual space. It can be seen that the WeChat group owner or manager is the de facto manager of the region. Social WeChat group owners can impose security obligations on venue managers:
First, the group owner opens the risk source and has the ability to control the risk. WeChat groups increase the frequency of social interactions, friction between people will inevitably occur, coupled with the "de-suppression" function of the network, people in pure virtual space often release more intense emotions than in the real space. WeChat group owners have a duty of protection to the subjects participating in the group chat, which can also be compared to the liability of the land interest occupier under the US tort law, and the land interest occupier has different degrees of duty of care to the infringer, licensee and invitee. WeChat group owners have weak legislation and weak enforcement control over acts that infringe on the rights and interests of group members, which are embodied in issuing group announcements, removing group members from group chats and dissolving WeChat groups, so as to prevent damage from occurring or further expanding.
Second, the proximity of management. For the sake of space and technical convenience, mainland administrative legislation gradually introduces the concept of third-party obligations to achieve the purpose of risk control with the help of social forces, and this governance model is in line with the economic principle of cost-effectiveness. The same is true in civil legislation, but the burden placed on WeChat group managers should not be excessive, and should match multiple factors such as their ability, the predictability of group members, and whether they have a profit-making purpose.
2. Group chat event organizer
WeChat group owners or administrators also assume the role of event organizers, but should distinguish between organizers in two different meanings: first, instigating or guiding the occurrence of infringement; Second, the infringement occurs through self-organization, and the organizers create conditions for it.
As the organizer, the owner of the social WeChat group has an obligation to protect unspecified third parties, because the social WeChat group usually connects people through specific topics, specific regions, specific relationships, specific interests, etc., and becomes a community, so as to achieve the effect of integrating fragmented information and taking collective action. On the one hand, large-scale collaboration and distributed nodes make the collection, processing and aggregation of information more efficient, and such group activities may infringe on personality rights such as human flesh search, may infringe intellectual property rights such as pirated e-book sharing, and may also violate the public interest, such as drivers notifying traffic enforcement police in real time of vehicle whereabouts and police duty to make other drivers evade law enforcement; On the other hand, the emotions of members of the group are easily instigated, and they take action, such as fans of different "rice circles" tearing up and insulting each other online, and illegal gatherings offline.
(3) The application of security obligations for social WeChat group owners
1. The content of the social WeChat group owner's security duty of care
The Civil Code makes general provisions on infringement liability on the Internet, regulating the infringement liability of network users and Internet service providers, but does not specifically stipulate the duty of care and infringement liability of online activity organizers such as group owners. We believe that the duty of care and related tort liability of the group owner can be discussed from the dimensions of security guarantee obligation and violation of security guarantee obligation. After all, the group owner is the organizer of the group chat event and the manager of a particular cyberspace.
Article 1198 of the Civil Code Operators or managers of hotels, shopping malls, banks, railway stations, airports, stadiums, entertainment venues and other business places or public places, or organizers of mass activities, shall bear tort liability if they fail to fulfill their security obligations and cause damage to others.
If the third party's behavior causes damage to others, the third party shall bear the tort liability; Where proprietors, managers, or organizers fail to fulfill their security obligations, they shall bear corresponding supplementary responsibilities. After the proprietor, manager or organizer bears supplementary liability, it may recover compensation from a third party.
The safety and care obligations of WeChat group owners include three levels before, during and after the event: in advance, set up group rules to clearly indicate the purpose of group establishment, the rights and obligations of group owners and group members, and the methods of resolving conflicts and disputes, etc., requiring group members to abide by laws and regulations, interact civilly, and express rationally; Maintain necessary supervision of the content of the group chat during the incident, and take corresponding measures if it is found that the group members continue to attack other members, and if there are many members and chat content in the group, take corresponding measures after the infringed party sends an application to the group owner; Actively resolve the conflict afterwards, organize consultations between the two sides, and still cannot resolve it, actively seek help from online platforms and state regulatory authorities.
It is worth noting that, first, in online group chats, due to frequent interactions, people should have a certain tolerance and tolerance mentality, and the determination of the duty of care should be based on the principle of leniency in individual cases; Second, the above-mentioned obligations of WeChat group owners are not absolute, especially the power of issuing group announcements and organizational coordination to the occurrence and expansion of damage needs to be further considered.
2. The security obligation of the social WeChat group owner and its fault liability
From the provisions of Article 1198 of the Civil Code, the liability for violation of this obligation applies to the principle of fault liability, not the principle of no-fault liability, and the presumption of fault does not apply.
First, tort liability resulting from breach of security obligations is in nature within the scope of the principle of fault liability. Although some scholars believe that the breach of the security obligation and the existence of fault are two different concepts, the two cannot replace each other. However, tort liability law is based on the principle of fault liability, with no-fault liability as an exception. No-fault liability needs to be clearly defined by law. The expression "failure to fulfill the obligation of safety and security" in the law shows that the principle of fault liability is still applicable.
Second, the presumption of fault does not apply to the determination of tort liability of online platform organizers. Paragraph 2 of Article 1165 of the Civil Code clearly stipulates that the application of the presumption of fault requires clear provisions of the law. Therefore, in the absence of such provisions in the current law, the rule of presumption of fault shall not apply to the determination of the responsibility of the WeChat group owner.
Three
The type of tort liability of the social WeChat group owner
In terms of the types of tort liability, the tort liability of the owner of the social WeChat group includes both his own liability, joint and several liability, and supplementary liability. First of all, if the WeChat group owner improperly handles the infringement of the rights of others, such as warning the infringed party or distorting the infringement facts in the form of an announcement, which affects the reputation of the infringed, he may be required to bear independent tort liability in accordance with Article 1165 of the Civil Code.
Secondly, when the WeChat group owner sets an overall goal, such as the purpose of creating a group is to share pirated e-books, or in a specific activity organization, guide the members of the group to synthesize other personal information of an individual through fragmented information to conduct human flesh searches, then the group owner shall bear joint and several liability for abetting infringement in accordance with Article 1169 of the Civil Code.
Finally, when WeChat group owners, as managers and organizers, fail to fulfill their obligations to stop people under their control from harming others, it is appropriate to supplement their responsibilities. The reason is that, on the one hand, joint and several liability lacks legitimacy. Group members do not need to obtain the consent of the group owner to publish information, and the two parties do not have the intention of contacting or jointly infringing in advance; Moreover, the status of WeChat group owners and network service providers is different, and when the network service provider still does not act after receiving the notice, the subjective "knowing" state makes it change from a technical service provider to a content service provider, from a "channel" to a "source", and from indirect responsibility to direct responsibility, but there is no change in the status of the WeChat group owner. On the other hand, the proportion of liability is not conducive to achieving a balance of interests between the infringers, and will fall into the dilemma of apportioning liability for the direct infringer without having to bear the final full liability for damages. Bearing supplementary responsibilities corresponding to fault and causal power can better balance the freedom of behavior of WeChat group owners with the value of protecting the rights and interests of rights holders. At this time, the perpetrator should have four elements to bear tort liability: act, fault, damage and causation. It is worth noting that, first, the behavior is consistent with the judgment of fault, because the duty of care is an obligation of conduct in a specific situation, and the deviation from this standard indicates that the actor is at fault; Second, the obligation of WeChat group owners is to stop people under their control from harming others, and the intervention of direct infringers does not block their causal relationship.
Footnote:
1. For the definition of online community, see Pang Zheng and Zhou Heng, "Field or Subject: The Theoretical Positioning of Online Community", Social Science Frontier, No. 12, 2017.
2. See Wang Shizong, "Adaptive Social Mobilization in Grassroots Policy Implementation: Administrative Control and Pluralistic Participation," Social Sciences in China, No. 11, 2018, pp. 149-150.
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