Discussion on the reasonableness of the rules for the return of live broadcast tips by one of the husband and wife

The law's policy attitude towards the new industry and new business model of live broadcast must be to standardize and guide it, and at the same time, it must also vigorously promote its healthy development, so as to strike a balance between the active market and the regulated market, and maximize the overall welfare of the society.

Author | Xia Jie, Internet Rule of Law Research Center, University of Chinese Academy of Social Sciences; Xu Fangyuan, School of International Law, China University of Political Science and Law

Edit | Bruce

I. Formulation of the problem

On April 7, 2024, the "Interpretation of the Supreme People's Court on the Application <中华人民共和国民法典>of the Marriage and Family Section (II) (Consultation Draft)" (hereinafter referred to as the "Marriage and Family Section Judicial Interpretation II (Consultation Draft)") was released to the public for comments, in which the provisions of Article 5, Paragraph 3, which regulates the live streaming tipping behavior of one of the husband and wife, have attracted widespread attention in the industry. [1] This clause stipulates that:

"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 tip, 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 court shall support it in accordance with law."

The above-mentioned refund regulations for live broadcast tips by one of the husband and wife reflect the rapid development of the online live broadcast industry in mainland China in recent years, which has penetrated from the emerging field of cyber law to the traditional field of family law. As the main business model in the online live broadcast industry, online live streaming tipping will inevitably become the focus of conflicts of interest of all parties. In the current judicial practice in mainland China, the legal disputes related to online live streaming tipping are mainly caused by one of the husband and wife applying for a refund, and the focus of the dispute mainly includes: the legal nature and legal effect of online live streaming tipping, as well as the legal effect of the joint property of the husband and wife.

With regard to the determination of the legal nature of online live streaming tipping, there are two arguments in judicial practice: the "online service contract theory" and the "gift contract theory". According to the network service contract, the user's act of rewarding the anchor is the consumption of the anchor's performance content, and the user obtains spiritual satisfaction, which is in line with the nature of the service contract as the content of payment, and the anchor is not simply profiting. This view is supported by the majority of current courts. [2] According to the gift contract, there is no obligation to pay for the user's tipping, and the user has no contractual obligation to pay or reward when watching the live broadcast, and the user's tipping is purely voluntary. The live broadcast display of the anchor is not a prescribed performance in accordance with the wishes of the tipper, and the tipping cannot be regarded as consideration for the live broadcast service, and the act of tipping should be a gift. This view is also supported by a small number of courts. [3] In general, based on a comprehensive consideration of factors such as the obvious commercial nature of live broadcast tipping, the consideration of performance services, the new transaction form of non-compulsory payment, and the interactive and differentiated services that may be obtained by tipping, the view that the legal nature of live streaming tipping is a service contract occupies a mainstream position. 【4】

In terms of the legal effect of the act of tipping the joint property of the husband and wife, the focus of the court's dispute is mainly on whether the live broadcast tipping exceeds the scope of family agency, whether the platform or anchor constitutes bona fide acquisition, and whether the live broadcast tipping constitutes a violation of public order and good customs. In terms of the scope of family agency, according to Article 1060 of the Civil Code:

"Civil juristic acts carried out by one of the husband and wife for the daily needs of the family are effective against both husband and wife, unless otherwise agreed between one of the husband and wife and the counterpart. Restrictions between husband and wife on the scope of civil juristic acts that one party may carry out must not be used against bona fide counterparts. ”

Therefore, if the act of tipping can be determined to be necessary for daily life, it does not exceed the scope of the right of one of the husband and wife to dispose of the joint property, and the act of tipping is regarded as an expression of the joint intention of the husband and wife, which is effective for both parties, and both husband and wife should bear the legal consequences arising therefrom. At present, most courts in mainland China mainly consider the amount of tipping, the number of tips, the duration of tipping, and other aspects, and hold that the general tipping behavior presents the significant characteristics of small amounts, multiple times, and long-term, and does not exceed the property expenses required for daily life. 【5】

If the live broadcast tipping exceeds the scope of the family agency, it is necessary to determine whether the platform and the anchor constitute bona fide acquisition, or whether the live broadcast tipping violates public order and good customs and constitutes an invalid civil legal act. The majority of the existing courts hold that it is objectively difficult for a platform as an online service provider to review and judge whether the user's tipping behavior infringes on the rights and interests of other co-owners, so the platform should be presumed to be in good faith when the platform has fulfilled its general duty of care, such as the platform has reminded the user of the status of disposing of the top-up funds in the Top-up Agreement. [6] When determining whether the act of tipping in a live broadcast violates public order and good customs, the court usually considers factors such as the purpose of the tipping, the relationship between the user and the anchor, and the content of the performance. The majority of the court held that if the user gives tips online for the purpose of entertainment and recreation, and the amount of the tip does not have a serious impact on family life, and there is no improper relationship between the user and the anchor (such as extramarital affairs, etc.), it is not appropriate to consider that the tipping behavior violates public order and good customs. 【7】

II. Analysis of the Regulatory Ideas of the Judicial Interpretation on Marriage and Family II (Draft for Solicitation of Comments).

Paragraph 3 of Article 5 of the Judicial Interpretation II on Marriage and Family (Draft for Solicitation of Comments) provides:

From the textual analysis of this article, it can be seen that the legislator has the following regulatory ideas:

Legal reasons for a husband and wife to request a refund for a live broadcast tip: The live broadcast content contains vulgar information such as obscenity and pornography to lure users to tip

This article stipulates that the circumstances in which one of the husband and wife may request a refund from the live streaming platform for a live broadcast tip is "the live broadcast content contains vulgar information such as obscenity and pornography to induce users to tip", and in this case, the husband and wife's tipping behavior is found to be invalid. According to Articles 144, 146 and 153 of the Civil Code, the grounds for the invalidity of civil juristic acts include: the parties lack the capacity for civil conduct, false expression of intent, violation of mandatory provisions of laws and administrative regulations, and violation of public order and good customs. It can be seen that the legislator has simulated "the act of rewarding a live broadcast containing obscene, pornographic and other vulgar information" as a situation that "violates public order and good customs", so that the act of tipping is invalid.

However, the criteria for determining "vulgar information" currently only appear in some policy documents, and laws and judicial interpretations do not clearly stipulate them. According to the 13 situations defined in the 2009 National Work Plan for the Special Action to Rectify Vulgar Practices on the Internet, vulgar information includes content that directly exposes and depicts sexual parts of the human body; Content that expresses or implies sexual acts, is provocative or insulting; Content that describes sexual acts, processes, and ways of sex in language that is sexually suggestive or sexually provocative; The whole body or private parts are not clothed, and only the content of the private parts is covered with limbs; Content that violates personal privacy, such as walking light, secretly taking pictures, and missing spots; Content that attracts clicks with vulgar and provocative headlines, etc. From the perspective of this definition, the identification of "vulgar information" is not only a factual judgment, but also involves a value judgment, and the identification process often includes multiple factors such as social concepts, ethics and morality, and cultural evaluation, and the scope of "vulgar information" is not only wide, but also constantly changing with the development of the times. It can be seen that the provisions of this judicial interpretation use the live broadcast content containing vulgar information as the legal reason for refund, which may make the threshold for refund too low.

The first responsible entity for the refund of live streaming tips by one of the husband and wife: the online live broadcast platform

In the live broadcast industry, there are multiple entities such as users, live broadcast platforms, and anchors (MCN institutions). The user purchases virtual currency on the platform for live broadcast tipping, and a network service contract relationship is formed between the user and the platform. When a user gives a tip to the live broadcast host, a contractual relationship between the user and the host is formed between the user and the live broadcast service, and the online live broadcast platform only provides live broadcast technical services, not a party to the live broadcast tipping service contract. This article stipulates that when one of the husband and wife discovers that their joint property has been used for live streaming of vulgar content and requests a refund, the primary responsible entity that needs to bear the obligation to return the reward money is the online live streaming platform, not the anchor who is the counterparty to the reward contract. The legislator may believe that on the one hand, the advance compensation of the online live broadcast platform has a good effect on the resolution of disputes, and on the other hand, it is also believed that there is no clear answer to whether the user tipping the live broadcast content in the live broadcast room is a reward to the anchor or the platform of the owner of the live broadcast room.

The value judgment of one of the husband and wife for the refund of live broadcast tips: the interests of the husband and wife are higher than the stable interests of the property rights transaction

When one of the husband and wife applies for the return of the live broadcast tip, behind this issue is the trade-off between the security protection of the spouse's interests and the protection of the transaction stability of property rights. On the one hand, the purpose of protecting the interests of husband and wife is to maintain the stability and harmony of marital and family relations, and harming the interests of spouses may make many people reluctant to enter the marriage and family because of misgivings. [8] On the other hand, the purpose of protecting the stability of property rights is to ensure the order of the market economy, and impairing the stability of transactions may reduce the activity of market transactions, undermine the platform's reasonable expectations of transaction results, and restrict the freedom of transactions. [9] In the setting of this provision, the legislator clearly puts the interests of the spouses at the heavier end of the value scale, holding that the interests of the spouses of the spouses take precedence over the stability of the transaction of property rights.

3. Possible problems in the above-mentioned regulatory thinking

It may oversimplify the objective legal relationship of the live broadcast industry, and lack detailed consideration of the objective situation of the legal subjects of all parties

This clause directly ignores the legal relationship between the online live streaming platform, the anchor, the MCN and the user. In the live broadcast industry, the user's live broadcast tipping in the live broadcast room is a contractual relationship formed between the user and the anchor for the live broadcast service, rather than a contractual relationship between the user and the online live broadcast platform, the host is the producer and provider of the content in the live broadcast room, and the online live broadcast platform is only a third-party entity providing live broadcast technical services, and is not a party to the live broadcast tipping service contract. Generally speaking, if the live streaming tipping service contract is invalid, the user should first claim a refund from the host, rather than taking the online live streaming platform as the direct responsible party for the refund.

Allowing the online live streaming platform to be the first person responsible for live streaming tipping will lead the platform to increase the screening of tipping users, such as actively collecting more information about the marital status of tipping users. Considering the fact that the online live broadcast platform cannot anticipate the objective situation of the marriage and family of the live broadcast tipping user, it is even more difficult to judge whether the amount of the tip exceeds the daily living expenses of a couple, and this clause will cause the online live broadcast platform to be in a dilemma.

There will be difficulties in the application of the law, which will affect the normal business model of live streaming tipping

The vague scope of the concepts of "pornography", "vulgar information", "solicitation", and "scope of tipping" in these Terms of Use may lead to problems in understanding and application. "Obscene and pornographic" information should be illegal information in law, not vulgar information, and the boundary between pornographic information and illegal information is also blurred and unclear, such as nude works of art. The scope of vulgar information is particularly wide, with obvious subjective judgment color, and different people have completely different definitions of vulgar information, and there is no legal definition and clarity, which is easy to generalize and lead to a wide range. The existence of the above-mentioned legal concept of uncertainty will cause a large deviation in the understanding and application of local courts, which will objectively lead to the difficulty of unifying the subsequent determination standards, and a large number of cases with different judgments in the same case, which will damage the credibility of the judiciary.

If the terms stipulate that a "married user" can request a refund from the platform based on the content of the live broadcast tipping vulgar information, then it stands to reason that the "unmarried user" should also request a refund from the platform based on the content of the live broadcast tipping vulgar information, and this clause lacks the necessity and reasonableness of a special interpretation from the marital relationship. If users are allowed to request the platform to return the tip amount based on the vulgar content of the live broadcast, it will directly destroy the stable business model of the live broadcast industry if the aforementioned scope of application is too wide.

In essence, the law is compensating one of the husband and wife who rewards the live broadcast, which is easy to form wrong incentives and breed a large number of black and gray industries

This clause is intended to protect the security and interests of one spouse in relation to property, but if "vulgar information" is used as a reason to apply for a refund from an online live streaming platform, there will be obvious false incentives and moral hazard issues. When one of the husband and wife completes the live broadcast tip, the anchor's live broadcast content delivery obligation and the user's monetary payment have been completed, and this clause intervenes in this service based on vulgar content, which is essentially the law by subsidizing the user's side to increase the transaction cost of the anchor, such as incentivizing the anchor to produce higher quality content. However, this clause will provide stronger incentives to users, such as directly incentivizing the increase of users' malicious refund behaviors, incentivizing users to collude with anchors, encouraging anchors to deliberately produce vulgar information or inducements, and actively cooperating with users or conspiring with users to protect their rights against the platform in litigation, etc., resulting in a large number of false rights protection lawsuits in the future, thus breeding a black and gray industry that requires the platform to refund for profit.

Fourth, improve the proposal

It is recommended to take into account the objective legal subjects and legal relationships in the live broadcast industry, and allocate rights and obligations around the "user-anchor-platform" tripartite

When the disposition of property by one of the spouses involves live streaming, in fact, this is already a matter of convergence between the two departmental laws (family law and network law), and it is no longer simply a matter of the application of individual rules, but has risen to the issue of the convergence and balance of conflicts of interest between the legal interests of different departments. The legal conflict between one of the husband and wife is no longer simply the conflict between the husband and wife's obligation to protect the property rights of the spouse and the right to dispose of the property, but the conflict between the expected protection interests of the husband and wife to the spouse and the business model of live tipping. In the case of a husband and wife applying for a refund for a live broadcast tip, the first responsible person should be the anchor who is the counterparty to the live broadcast tipping contract, not the online live broadcast platform; In the process of live streaming, if there is any relevant fault of the platform, the platform shall bear the corresponding obligations based on the fault, behavior or consequences.

It is suggested that conceptual improvements should be made from the perspective of legal operability, and guidance should be carried out from the perspective of encouraging and regulating the healthy development of the live broadcast industry

When the law intervenes in the live streaming of adult live streaming tips, it needs to adopt different intervention concepts and methods than those of minors. With regard to the protection of special groups of minors, there is nothing particularly wrong with adopting a more paternalistic protectionism in the process of developing and perfecting their social understanding. When making legal interventions for live streaming tipping by adults, it is necessary to analyze more of the root causes of the widespread social problems of live streaming tipping, and conduct a specific analysis from the perspective of the specific nature of live streaming tipping, the specific circumstances in which the tipping involves fraud and inducement, and the standards of legal operability such as live streaming tipping violating public order and good customs, infringing on users or other rights and interests, and making necessary guidance on this basis, so as to avoid the complete negation of the live broadcast industry by the moral "one-size-fits-all" judgment. Therefore, it is suggested that subjective standards such as "vulgar information" be revised to objective standards such as "illegal information", and that operational provisions such as the nature of service contracts for live streaming tipping should be clarified.

It is recommended to deal with content governance issues and live streaming reward disputes separately to avoid large negative externalities due to rule spillover

At present, the mainland has adopted laws and regulations such as the Cybersecurity Law and the Provisions on the Governance of the Online Information Content Ecosystem, as well as special actions such as the "Clear Action" to carry out special governance, and if the live-streaming platform violates the above-mentioned public law requirements, it needs to bear public law responsibilities such as interviews, fines, and rectifications. Giving one of the spouses the right to apply for a refund based on vulgar information about the live broadcast content is equivalent to the platform's private law liability due to public law obligations. In the case that the mainland has fully established a platform content governance system, rashly confusing the distinction between the public law obligations and private law obligations of the platform, and over-expanding the regulatory field of family law to the field of cyber law, may unduly discourage investment in the digital economy industry.

In short, the reason why the business model of live broadcast reward will emerge is not only that this consumption model can promote the sustainable operation of anchors, MCN institutions, platforms and other parties, but also that the more important sociological significance is that users reward live broadcast content, in fact, it is the emotional expression and symbolic consumption of users with strong personalized motivation, behind this consumption is the consideration paid by users for the private network connection built by the anchor's live broadcast room, and what users get from this process is an emotional enjoyment. Recognition or emotional recognition gained through interaction with the streamer or the atmosphere created by the streamer. [10] The law's policy attitude towards the new industry and new business model of live broadcast must be to standardize and guide it, and at the same time vigorously promote its healthy development, so as to strike a balance between the active market and the regulated market, and maximize the overall welfare of the society.

bibliography

[1] Intellectual Property Frontier: An Academic Seminar on Legal Issues Related to Rewarding Consumption on Webcast, published on the WeChat public account of "Intellectual Property Frontier", April 22, 2024, https://mp.weixin.qq.com/s/0_hi-ysUHRDIlrb3hLRNbg

[2] Beijing Internet Court (2021) Jing 0491 Min Chu No. 4906, Beijing Fourth Intermediate People's Court (2022) Jing 04 Min Zhong No. 234, and Hangzhou Intermediate People's Court of Zhejiang Province (2020) Zhe 01 Min Zhong No. 3982

[3] Guangzhou Internet Court (2020) Yue 0192 Min Chu No. 1447 Judgment

[4] Beijing Internet Court (2021) Jing 0491 Min Chu No. 4906 Judgment

[5] Shanghai No. 2 Intermediate People's Court (2020) Hu 02 Min Zhong No. 9826 and Anhui Bengbu Intermediate People's Court (2022) Wan 03 Min Zhong No. 2985

[6] Judgment of Wuhu Intermediate People's Court of Anhui Province (2020) Anhui 02 Min Zhong No. 2598

[7] Shanghai Yangpu District People's Court (2021) Hu 0110 Min Chu No. 13076 Judgment

[8] Zhu Hu, "Specific Types and Responsibilities of Husband and Wife Debts", Law Review, No. 5, 2019

[9] Pei Hua, "The Conflict and Coordination of the Maridal Property System and the Rules of Property Law", Legal Research, No. 4, 2017

[10] Yang Tingdan, "The Emotional Mechanism of Live Broadcast "Reward" from the Perspective of Social Comparative Theory", New Media Research, No. 8, 2021.

(This article only represents the author's point of view and does not represent the position of intellectual property)

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