With the vigorous development of the Internet digital economy, the emerging interactive entertainment model of online live streaming has risen rapidly and has become an important driving force for economic growth. Therefore, clarifying the nature, legal status and legal responsibility of relevant entities is a key issue to improve the ecological construction of the current live broadcast industry.
On April 7, the "Supreme People's <中华人民共和国民法典>Court's Interpretation on the Application of the Marriage and Family Section (II) (Draft for Solicitation of Comments)" (hereinafter referred to as the "Judicial Interpretation of the Marriage and Family Section (II)") was released to the public for comments, in which Article 5 [Handling of Minors and One of the Husband and Wife Live Broadcast Tips] stipulates:
Where minors under the age of 8 carry out tipping through online livestreaming platforms, and their legally-designated representative claims that the civil juristic act is invalid and requests a return of the money already tipped, the people's courts shall support it in accordance with law.
Where minors between the ages of 8 and 16, or those 16 years of age or older who cannot rely on their own labor income as their primary source of livelihood, carry out tipping conduct through an online livestreaming platform that is inappropriate for their age, intelligence, or mental health, without the consent of their legally-designated representatives, and the legally-designated representatives do not recognize it and advocate that the civil juristic act be invalid, and request that the online livestreaming platform return the money already rewarded, the people's courts shall support it in accordance with law.
Where one of the husband and wife carries out tipping through an online livestreaming platform, and there is evidence showing that the livestreaming content contains vulgar information such as obscenity or pornography to entice users to give tips, and the other party claims that the civil juristic act is invalid and requests that the online livestreaming platform return the money already given, the people's courts shall support it in accordance with law.
Where one of the husband and wife, without the consent of the other party, clearly exceeds the general household consumption level, seriously harming the interests of the husband and wife's joint property, and the other party requests that the joint property be divided during the existence of the marital relationship on the grounds that the other party has squandered the joint property of the husband and wife, or where the party who gave the reward is given a small or no share during the division of the joint property of the husband and wife in a divorce, the people's court shall support it in accordance with law.
In this context, the academic seminar on "Legal Issues Related to Online Live Streaming Reward Consumption" hosted by IP Frontier New Media & Compliance Plus was successfully held in Beijing, and more than 20 experts and scholars from universities, Internet courts, and leading live broadcast companies participated in the speeches and audits. At the meeting, the guests had in-depth exchanges on hot issues such as the nature of live broadcast tips, the controversial issues in the return of recharge tips, the responsibility boundary of live broadcast platforms, and tips involving stolen money.
Liu Xiaochun, Director of the Internet Rule of Law Research Center of the University of Chinese Academy of Social Sciences and Professor of the University of Chinese Academy of Social Sciences, Xue Jun, Professor of Peking University Law School and Director of the E-Commerce Law Research Center of Peking University, and Fan Mingzhi, Professor of the Institute of Data Law of China University of Political Science and Law, deeply analyzed the business operation model of the live broadcast industry, the difference between live broadcast tipping and traditional e-commerce, and the core issues such as the legal relationship between live broadcast platforms, anchors, MCN institutions and users. The intellectual property frontier now compiles the on-site speeches of the teachers into a document for the reference and learning of the industry.
Liu Xiaochun, director of the Internet Rule of Law Research Center of the University of Chinese Academy of Social Sciences, discussed the overall industry observation of online live broadcasting, the allocation of industry resources and risks brought about by specific rules, and the possible consequences of corresponding rules.
Liu Xiaochun pointed out that the live broadcast industry is quite different from the traditional offline business model or e-commerce model because of its unique business model and evolution path, and there are four main characteristics of live broadcast tipping: first, the public has some stereotypes about the new business model of live broadcast tipping, but in recent years, the live broadcast tipping model has become increasingly diverse, and the stereotype has been divorced from reality; second, the functional positioning of live broadcast tipping is not a unified transaction behavior, but an online payment model, and there may be substantial transaction tipping at the top of the payment model; third, on the issue of subject identification, live broadcast tipping is usually an anchor facing a group of anonymous tradersFourth, there is a problem of positioning the legal relationship between the transaction partner and the platform in the live broadcast relationship, and in most scenarios, tipping is the relationship between the anchor and the user, even if the live broadcast platform has a commission, it is still the status of a third party, and the live broadcast of the anchor should not be regarded as the self-operated behavior of the e-commerce platform.
Liu Xiaochun believes that there are a series of conflicts of interest and rights trade-offs in the dispute over the refund of live tips, and it is necessary to consider the trade-offs between multiple interests in the formulation of refund rules, including the protection of the interests of specific groups, as well as the protection of transaction security and trust interests. In the case of refunds for minors, it is argued that the refund of tips is not only to protect the interests of minors, but also to protect the property of the minors' families, while in the case of refunds for adults, it is to protect the interests of spouses. At this time, it is necessary to carefully consider whether it is a more efficient way to prevent minors and some adults (not only spouses) by raising the overall cost subsidy of the industry? Is there any other lower-cost distribution method? After the tipper makes a profit through malicious speculation, if laws and regulations excessively allocate risks to the platform, will it lead to the breeding of malicious speculation? In addition, will this system design lead to more disputes and excessive consumption of judicial resources?
Finally, Liu Xiaochun said that the risk allocation problem of live broadcast reward refund is essentially a risk allocation problem of uncertainty, including subject identification and verification, legal relationship clarification and responsibility allocation, protection of minors, confirmation standards related to content governance, platform reputation and public opinion orientation, etc., at this time, a reasonable cost allocation plan is needed to determine the reasonable fault standard based on efficiency. The root cause of the frequent occurrence of malicious refunds is the low cost of speculative arbitrage, which is manifested in the relaxation of the burden of proof under the problem of proof, the exemption from refund of the transaction consideration, the convenience of batch operation, and the lack of accountability mechanism. One of the key tasks at present is to strengthen the understanding and cooperation between the judicial authorities and the live broadcast platform, carry out special crackdown and governance against malicious refunds and the black and gray industry chain, and curb the abuse of refunds by improving the accountability mechanism, so as to maintain the healthy and orderly development of the live broadcast reward industry.
Xue Jun, a professor at Peking University Law School, focused on the legal relationship in live streaming tipping, and he believed that the current judicial interpretation on marriage and family (II) did not pay attention to the special features of the legal relationship in live streaming. It should be made clear that although there is a cooperative relationship between the live broadcast platform and the online anchor in business operations, the anchor is independent and is not an employee of the live broadcast platform, and when it comes to a dispute over the return of tips, the subject responsible for the return should be the anchor receiving the tip, not the platform as a party to the recharge service relationship, and it is not appropriate to treat the platform and the anchor as the subject of joint responsibility.
Xue Jun emphasized that in the live broadcast industry, the business model of users recharging on the platform in exchange for virtual props and tipping in each live broadcast room is significantly different from that of traditional e-commerce, so the live broadcast platform should bear the corresponding regulatory responsibilities while profiting from the live broadcast business activities, especially in ensuring the compliance of live broadcast content and preventing inducement of tipping, etc., and the protection responsibility for special groups such as minors is also required to bear the responsibility of prior review. In any case, it cannot be denied that the anchor and the platform are legally independent of each other, and the anchor and the platform still maintain their independent legal status.
In addition, the burden of proof should also be clarified in the implementation of the Consultation Paper. If the returner is required to bear the corresponding burden of proof, how can the live streaming platform assist and cooperate with law enforcement? How to determine the standard of violating "public order and good customs"? Xue Jun stressed that the standard should be reasonably formulated to prevent the abuse of the refund system and the breeding of black and gray industries such as the use of tipping and money laundering.
Regarding the resolution of live streaming reward disputes, Xue Jun pointed out that the current mainstream view tends to oppose the use of arbitration clauses, which will unnecessarily increase the threshold for dispute resolution.
Fan Mingzhi, a professor at the Institute of Data Rule of Law at China University of Political Science and Law, believes that online tipping is based on the behavior of tipping through live broadcast media in the context of the Internet, which should be regarded as a new model in the digital economy and should be distinguished from traditional tipping or the Western "tipping" system.
In recent years, the handling of disputes arising from live streaming tips has mainly focused on whether it should be attributed to a service contract or a gift contract. In many cases, the act of tipping has both the nature of service and the nature of gift, which makes it difficult for the traditional doctrine of civil legal behavior to make an objective and accurate description of it.
Fan Mingzhi said that for specific tipping behaviors, the live broadcast platform is not the subject or participant of the tipping, but only provides a platform for live broadcasting. Regarding the legal nature of live tipping, Pham Minh Chi believes that live streaming tipping is an economic activity, and not all economic activities need to be adjusted by law. As for the subject of live broadcast tipping, the relevant provisions of Article 5 of the Supreme People's Court's Judicial Interpretation II (Draft for Solicitation of Comments) on live streaming tipping are repetitive provisions on the content of the Civil Code to a certain extent, but the major difference between online behavior and real behavior is that online behavior is not the direct participation of real natural persons, and in the context of the online real-name system, online accounts are not only the representatives of users, but also the subject of online economic activities and legal acts, and online platforms can only judge the subject nature of the tipper based on the account, and should not directly regulate the behavior of the actor through the symbol of the accountBecause under the system of online real-name system, the account itself is a symbol of the subject, which can improve the efficiency of the normal operation of the network economy. Based on the same reason, if the account is rewarded by other people, then the consequences should still be borne by the main body of the account, which is a requirement of the network economy, otherwise it is not only not conducive to the development of the network economy, but even the agency logic of the traditional economy has been overthrown; Moreover, this kind of self-denial is only a statement, which cannot be determined through objective evidence, and it is difficult for the platform to find reasons for refutation, and its authenticity is also difficult to establish in the evidence system, because it is a kind of denial of one's own behavior. Therefore, there is no need for the law to intervene, and it is difficult for the law to establish a set of self-justifying and feasible frameworks from the relationship between rights and obligations and the evidence system after the law intervenes.
Professor Fan Mingzhi argued the consequences of minors using the guardian's account for tipping without authorization from the affirmative and negative arguments, and believed that online platforms should fulfill their autonomous management responsibilities for live broadcast tips, and live broadcast tips are an autonomous behavior of the platform under the legal framework, and the specific rules of behavior should be completed by the online platform.