«——·Preface·——»
In the Internet era, people's lifestyles and communication methods have undergone tremendous changes, and online platforms have provided people with convenient channels for obtaining and sharing information, but also brought some new legal issues.
For example, in order to pursue Internet popularity or satisfy their vanity, some people will publish or use other people's portraits on the Internet, and even maliciously spoof or ugly them.
These acts not only hurt the feelings of others, but also violated the portrait rights of others.
The right of portrait is a kind of personality right enjoyed by citizens to enjoy the tranquility of private life and private information to be protected in accordance with the law, and not to be illegally intruded upon, known, collected, used and disclosed by others.
This article will analyze the common infringement of portrait rights on the Internet and how to protect your legitimate rights and interests through a real case.
«——·Case Review·——»
On August 22, 2022, when Ms. Zhou, a citizen of Hubei Province, cut her hair at a barbershop in Jianghan District, the barber not only used four mobile phones to broadcast live at Ms. Zhou at the same time, but also broadcast the haircutting process live without her permission.
Ms. Zhou asked the barber Mr. Xiong to stop the live broadcast but was refused, and was replied by the barber as "outdated": "The live broadcast is normalized, and it is not a star, what are ordinary people afraid of?" ”
In a fit of anger, Ms. Zhou left the barbershop without even cutting her hair, and later complained on the Wuhan city message board.
The market supervision department of Jianghan District involved replied that it was "not accepted" because the matter had been coordinated by other departments on the spot.
The topic of the incident once rushed to the top of Weibo's hot search, with 330 million views.
A large number of netizens expressed support for Ms. Zhou, and at the same time complained about their similar unpleasant experience of "being livestreamed", which also caused netizens to discuss personal privacy and portrait rights.
«——·Interpretation by Case·——»
The incident involved two main points of controversy: first, whether the barber violated Ms. Zhou's portrait rights; The second is whether Ms. Zhou can claim compensation from the hairdresser or the live streaming platform.
According to Article 1039 of the Civil Code of the People's Republic of China, "Citizens enjoy the right of portrait. The portrait of a citizen may not be used for profit-making purposes without the consent of the person. ”
The law identifies two elements for infringement of portrait rights:
First, without the consent of the portrait rights holder.
The second is for profit.
In this case, the barber livestreamed the haircutting process to netizens without Ms. Zhou's consent, and obtained revenue from the live streaming platform (such as tips, advertising fees, etc.), which obviously constituted an infringement of Ms. Zhou's portrait rights.
The barber's so-called "normalization of live broadcasting" and "not a star" and other remarks cannot be used as a reason for his defense or exemption.
Because whether it is ordinary people or celebrities, they have the right to choose whether to disclose their image and life, and others cannot deprive or violate it without authorization.
In addition, the barber's actions may also violate Ms. Chow's right to privacy.
Privacy refers to a kind of personality right enjoyed by citizens to enjoy the tranquility of private life and the protection of private information in accordance with the law, and not to be illegally intruded by, known, collected, used and disclosed by others.
In this case, the barber made Ms. Zhou's hair-cutting process public to netizens for viewing, exposing Ms. Zhou's personal image, hairstyle, clothing and other private information, seriously interfering with Ms. Zhou's private life and peace, and may also cause mental damage to Ms. Zhou.
The right of portrait is a basic personality right of citizens and is protected by law.
When using the portrait of others, anyone shall respect and protect the portrait rights of others, and must not use or abuse the portrait of others without authorization.
If you find that your portrait has been used or abused by others without consent, you may request the infringing party to stop the infringement, eliminate the impact, restore your reputation, apologize, etc., and you can claim compensation based on the actual losses or the infringing party's gains.
If the infringing party refuses to perform its obligations or is unable to negotiate with it, it can file a lawsuit in a court with jurisdiction to protect its legitimate rights and interests.
Another point of contention is whether Ms. Zhou can claim compensation from the live streaming platform.
As an online service provider, should the live streaming platform be liable for the infringement of the barber?
According to Article 42 of the Cybersecurity Law of the People's Republic of China, "network service providers shall perform network security protection obligations in accordance with laws, administrative regulations, and relevant agreements, employ technical measures and other necessary measures to ensure network security and stable operation, and prevent network data leakage, theft, or tampering." ”
This law requires network service providers to supervise and manage the network services they provide, to prevent the appearance of content that violates laws and regulations or infringes upon the lawful rights and interests of others.
In this case, the live streaming platform, as the network service provider of the barber's live broadcast of the haircut process, should review and supervise the content uploaded by the barber, promptly discover and delete the content suspected of infringing on the portrait rights and privacy rights of others, and take necessary measures to prevent it from continuing to infringe.
If the live streaming platform fails to perform the above obligations, resulting in a large number of dissemination and viewing of Ms. Zhou's portrait and privacy, and causing losses or impacts to Ms. Zhou, then the live streaming platform shall bear joint and several liability and compensate Ms. Zhou for the loss.
Network service providers refer to entities that provide various types of services to users through the Internet, including websites, applications, social media, e-commerce platforms, etc.
While providing services to users, network service providers shall also abide by national laws and regulations, respect and protect the lawful rights and interests of users and others, and must not disseminate or tolerate the dissemination of content that violates laws and regulations or infringes upon the lawful rights and interests of others.