The trouble of "being live-streamed": eating, fitness, and haircuts can be photographed, and customers become drainage tools for businesses

The camera is on the customers who are dining, but the merchants are hiding behind their phones. In September last year, Wang Dan swiped a restaurant's live broadcast on an online platform, "It can be seen that the customers who are dining in the picture are completely unaware." She asked in the comment area: "Is this a real scene of the restaurant?" In order to prove it, the merchant specially reached out and waved a few times in front of the camera.

"I usually see similar live broadcasts, and I substitute myself, but I really can't accept that every move of eating is live. Subsequently, she reported the restaurant's live broadcast room for "invasion of privacy". About 4 hours later, the live broadcast platform replied to Wang Dan, "We will focus on observing user behavior and make further judgments." Two days later, Wang Dan swiped the live broadcast of this restaurant again, but the picture was no longer a customer dining in the store.

Nowadays, with the accelerated integration of online and offline consumption scenarios, it is common for consumers to be "live-streamed" if they are not careful. Recently, a reporter from China Youth Daily and China Youth Network found that some businesses use short video platforms to solicit business, and without permission, they conduct live broadcasts and shooting of real consumption scenes, using customers as a tool for marketing and drainage.

On the International Consumer Rights Day on March 15 this year, the Jiangsu Provincial Consumer Rights Protection Commission (hereinafter referred to as the "Jiangsu Consumer Protection Committee") and the Jiangsu Provincial High People's Court jointly released the "2023 Typical Cases of Consumer Rights Protection in the Province". One of the cases made it clear that "merchants need to be held liable for violating portrait rights by disclosing consumer videos without consent". The Jiangsu Consumer Protection Commission said it hoped to use this as a warning for similar infringements.

Eating, exercising, and getting a haircut can all be livestreamed

Liu Tong has encountered such things many times. What impressed her was that in a pancake shop, when she heard the merchant shouting, "Thank you for your ×× care", and she found out that it was "live-streamed". Liu Tong hurriedly took a step back, "Why don't you say it in advance during the live broadcast?" The merchant replied that the opening of a new store needs to increase visibility and earn some traffic, "It's just a moment when you shoot it, no one knows anyone, what are you afraid of?"

"Even the pedestrians who come and go are forced to become 'dragon actors'. Liu Tong feels that businesses do not know how to respect, and this practice is consuming customers, and "business will not last long." Sure enough, 3 months later, the pancake shop posted a notice of transfer.

Wang Dan also doesn't understand what there is to broadcast live about "this kind of private thing" when customers eat. She shared her experience of reporting businesses online, which sparked a lot of discussions. Some netizens wrote in the comment area: "Now many stores are like this, it's really annoying, and it is a relaxing thing to chat with the people around you during meals." ”

Under the topic of "being live-streamed" on the online platform, many netizens shared their real experiences. The reporter of China Youth Daily and China Youth Network noticed that in addition to restaurants, there are also gyms.

Last spring, Song Xue bought a personal training class at a gym, and one day when she was changing her clothes and preparing for the gym, the coach had already put on her mobile phone and stand and started live broadcasting. The coach told Song Xue, "This can brush up popularity", and comforted her that you can only see the movement from this angle, not the face. However, when she clicked into the live broadcast room after class, she found that not only could she clearly see people's faces, but "she could even hear what was being said." Although Song Xue has always expressed dissatisfaction, the live broadcast of the coach of the whole class has never stopped.

Song Xue said that the city where she lives is not big and she has many acquaintances, "I am willing to share my real life with my family and friends, but I don't want to do it in this way." In addition, she feels that fitness is to release stress and make herself healthier, "I don't want to see strange netizens commenting on her movements or figure, which will bring a lot of psychological burden." ”

A reporter from China Youth Daily and China Youth Network observed on the short video platform that in fact, compared with restaurants and gyms, barbershops are more frequent places for "live broadcast" events.

In order to avoid risks and customer complaints, some restaurants will conduct live broadcasts in the back kitchen, or choose anchors to bring goods, and some gyms directly invite coaches to carry out live broadcasts of fitness classes. For many barber shop merchants, there seems to be no other more suitable option on the short video platform, so they can only live broadcast the process of customer haircuts and display customers' finished hairstyles. It is not known whether the filming and distribution of these contents have been approved by the customer.

Ms. Cui, who runs a barber shop in rural Henan, registered a short video account a month after it opened and now has more than 10,000 followers. According to her, whether it is a video or a live broadcast, the platform will give key recommendations on the same city page, and the effect is very good. "Now 98% of the customers who come to the store come after seeing the video, and they can generally accept filming or live broadcast, and some even take the initiative to show their faces. In the live broadcast room of a barber shop in Dongguan, Guangdong, less than 50 people watched online that afternoon, and the merchant was a man with 18 years of experience in barbering. He said that in reality, there are indeed some customers who are reluctant to show their faces, so the live broadcast camera is placed behind the side of the seat, and the customer's face will not appear in the picture, "This is normal, to protect people's privacy." With that, he went to receive the customers who had just entered. In the process of giving this customer a haircut, I also talked to him about the benefits of doing live broadcasts.

At the beginning of this year, Li Hong went to a barber shop in Nanning, Guangxi Province to perm her hair, and after more than half an hour, she found a clerk fiddling with live broadcast equipment, and the camera was facing her. After hesitating again and again, Li Hong chose to ask, "Is this a live broadcast?" The other party was vague at first, but had to admit it under questioning.

"I felt that perming was a very private thing, and it violated my image rights by livestreaming it without my knowledge. At that time, Li Hong was a little emotionally broken and immediately downloaded a live broadcast software, but because the clerk had finished the live broadcast at this time, she did not find the relevant records, and finally had to "bite the bullet" to finish her hair.

According to the information provided by Li Hong, a reporter from China Youth Daily and China Youth Network saw on the short video platform account of this barber shop that many of the videos released in the past were shot in real time in the store. The latest video was posted on March 30, showing the store in all aspects, and a customer happened to pass by the camera during the filming and quickly ducked.

There is a precedent for similar incidents. According to media reports, in August 2022, Ms. Zhou, a citizen of Wuhan, complained on the city's message board that the barbershop business set up four mobile phones to broadcast live without her permission. After Ms. Zhou clearly asked her to stop the live broadcast, the other party said that "other customers are very happy to be able to show their faces in the live broadcast room" and "they are not celebrities, and ordinary people have nothing to fear". In a fit of rage, Ms. Zhou left the barbershop before her hair was cut.

Can only be stopped?

During the interview, many interviewees said that due to various reasons such as personality and courage, even if they encounter such a thing in real life, they will basically not change their faces and take measures on the spot, but can only complain in private and seek comfort.

After the incident, Song Xue looked through similar information posted by netizens on the online platform, hoping to find a better solution. "Although I studied law, I didn't want to deal with this kind of thing through legal means because I had the mentality that 'more things are better than less things'. ”

For Li Hong, after more than 3 months, I recalled that experience again, angry and a little aggrieved at the same time, "That was the first time I encountered it, and now I think about it at that time, I should be a little tougher and take out my mobile phone to record and defend my rights." ”

It can be seen that after the above-mentioned "live broadcast" incident, consumers usually face two outcomes: one is that they do not realize that their behavior has been broadcast live throughout the whole process, or feel that this is a trivial matter and is not worth caring about, and the other is that although they find out, after negotiating with the merchant, they can only stop because they have no way to verify or are isolated.

In a typical case released by the Jiangsu Consumer Protection Commission, stylist Sun filmed the process of communicating hairstyles and haircuts with Ye, and uploaded them to the Internet for publicity. After Ye found out, Sun first deleted the video, and then coded Ye's face with the text "The guests in Beijing, Shanghai and Guangzhou can't afford to offend", uploaded the video again, and deleted the video two days later. Ye sued the court, demanding that Sun apologize and compensate for mental damages and other losses. Sun believes that Ye agreed to shoot the video and should be able to publish it by default.

The court held that although Ye did not object to the shooting of the video, he did not explicitly agree to Sun's uploading of the video to the online platform for public release, and Sun's behavior constituted an infringement of Ye's portrait rights, so it ruled that Sun apologized on the social platform for 10 days and compensated Ye for 1,000 yuan for mental damages.

According to the Jiangsu Consumer Protection Commission, live streaming has gradually integrated into people's daily life in today's society, and some businesses are keenly aware of the business opportunities to promote their business and expand customer sources, but there is also a potential risk of infringing on consumers' portrait rights. This judgment reflects the legislative purpose of the Civil Code to strengthen the protection of personality rights, and is also conducive to enhancing the comprehensive protection of consumer rights and interests.

My live streaming, my way?

Faced with this new problem in the consumer sector, many consumers are at a loss. Qian Zhiming, who often receives inquiries about similar incidents, said that there are not many precedents that have really formed precedents. In Qian Zhiming's view, "the release of typical cases can play a public role in the implementation of the law, warn businesses, and guide consumers to protect their rights, so as to establish a good consumer environment." ”

Ma Liang, a professor at the School of Public Administration of Chinese University, believes that many businesses do this to achieve immersive publicity effects, but without permission, it will not only affect the consumer experience, but even discourage other potential consumers. Wang Hui of Beijing Jingshi Law Firm reminded businesses that they should change the misconception of "I am the master of my territory" and guard the marketing boundary.

Articles 1018 and 1019 of the Civil Code stipulate that natural persons enjoy the right of portraiture and have the right to make, use, disclose or permit others to use their own portraits in accordance with the law. Without the consent of the portrait rights holder, the portrait of the portrait rights holder must not be produced, used, or disclosed. Wang Hui said, "If a merchant does not have the consent of a customer, it will obviously infringe on his or her portrait rights. Therefore, he encouraged consumers to have the courage to say "no" to acts that infringe on personal portrait rights.

"If consumers can take action, dissuade businesses when they find that they are violating the rules of live broadcasting, and give feedback through relevant channels, they can effectively stop the illegal behavior of merchants. "Of course, how to make these feedback channels smoother is a crucial issue." ”

The reporter of China Youth Daily and China Youth Network consulted the user rules of several online live broadcast platforms, which contain relevant expressions and requirements such as "shall not infringe on the portrait rights and privacy rights of others", but there is no clear provision on "whether the consumption behavior of merchants live broadcast customers is allowed". In response to this problem, the customer service of an online live broadcast platform replied, "If you don't want to appear in the live broadcast screen, you can communicate with the other party directly, or you can choose to report the other party's live broadcast room, and the platform will handle it for you." ”

Ma Liang suggested that online platforms should unblock channels for rights protection, and when consumers find that their personal rights and interests have been infringed, they can feedback and report through complaint channels, so that illegal short videos or live broadcasts can be removed from the shelves in time for rectification. At the same time, it is also necessary to strengthen supervision, make businesses comply with industry conventions and platform rules, and guide businesses to solve the contradiction between customer information protection and publicity and promotion through technical means (such as mosaic, etc.), so as to jointly maintain a healthy and benign commercial live broadcast ecology.

He said: "At present, the penalties for relevant merchants and platforms are not enough, and in the future, we should cooperate with regulatory policies and increase penalties in order to set an example." ”

Privacy protection under "Live for All".

What's more, the act of "being livestreamed" may also reveal sensitive privacy information such as consumers' faces and whereabouts, thus bringing many uncertain risks. "With the rapid development of biometric technology, criminals can even use this information to engage in illegal activities, such as forging identities and fraudulently using identities for financial transactions, which poses a threat to the personal and property safety of consumers," Wang added. ”

According to the 53rd Statistical Report on the Development of the Internet in China released by the China Internet Network Information Center, as of December 2023, the number of live streaming users in mainland China has reached 816 million, accounting for 74.7% of the total number of Internet users. Among them, the scale of e-commerce live broadcast users is 597 million.

"In the era of live broadcasting, consumers' privacy rights are easily infringed. As a member of the lawyer group of the China Consumers Association, Hu Gang of Beijing Chaoyang Law Firm has long been committed to the protection of consumer rights and interests. In his view, with the rapid development of Internet technology, "consumers are always in a vulnerable position, and they need to enhance their awareness and ability to protect their privacy and other legal rights." ”

On February 9, 2021, seven ministries and commissions, including the Cyberspace Administration of China, the Office of the National Working Group for the Elimination of Pornography and Illegal Publications, and the Ministry of Industry and Information Technology, jointly issued the "Guiding Opinions on Strengthening the Regulation and Management of Online Livestreaming", which mentions that "consolidate the entity responsibilities of platforms, strictly perform the statutory duties and obligations of online livestreaming platforms, and implement the list of entity responsibilities of online livestreaming platforms" Clarify the legal responsibility of anchors, and online anchors must carry out online livestreaming activities in accordance with laws and regulations, and must not engage in activities prohibited by laws and regulations, such as infringing on the lawful rights and interests of others."

"With the advancement of digitalization, especially the continuous iteration and update of artificial intelligence technology, privacy protection is particularly urgent and severe. Hu Gang suggested that in the future, the principle of "quick establishment and frequent repair" can be adhered to in legislation - relevant laws should be established quickly and revised frequently. "The enactment of relevant laws is to solve the problem of existence, and frequent revisions are to respond to the objective reality of the rapid development of society and technology, and to adapt to the urgent needs of reality through continuous revision and improvement of laws. ”

Li Bin of Beijing Zhongwen Law Firm is also a member of the lawyer group of the China Consumers Association. He believes that in the Internet era, the phenomenon of infringing on consumer privacy is rampant, and many new forms of expression have emerged at the same time, and "being live" is one of them. "It's very similar to the old days when photo studios hung photos in their stores without the permission of their customers."

In this case, how to better protect privacy? Li Bin mentioned the review of two parties: the live broadcast platform and the platform users.

To do a good job in auditing, the live broadcast platform is duty-bound. Li Bin explained, "The platform controls the absolute information advantage and is also one of the largest profiteering, so it is very important to consolidate its own responsibility." ”

At the same time, he reminded us that we should also review before watching and reposting various live broadcasts to avoid becoming a member of the infringement team. "In this era, almost everyone has a smart terminal, and everyone can broadcast themselves, others, and everything they are interested in. You must know that although there is the right to live broadcast and watch, there are boundaries to the exercise of rights. Don't feel indifferent, just take a look and retweet it. ”

"In short, the most important thing is to form a comprehensive governance system of social co-governance. Li Bin said.

(At the request of the interviewee, Wang Dan, Liu Tong, Song Xue, and Li Hong are pseudonyms in the article)