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Recently, the net red ‘Northeast rain sister’ due to false propaganda, rain sister media company was law enforcement agencies to impose administrative penalties of 1.65 million yuan. Live shopping has become a lot of people's way of shopping, from the phenomenal anchor Viya, Li Jiaqi, to the later ‘small Yang brother’, and recently ‘Northeast rain sister’, have appeared false propaganda problems. Now the author according to the law, combined with legal practice, ‘Northeast rain sister’ as an example, talk about the legal problems of live with false propaganda.

First, the definition of live with goods

Network live marketing (hereinafter collectively referred to as ‘live with goods’) is equivalent to commercial advertising, related to live with goods can be applied to the ‘Advertising Law’, before the theoretical entanglement. Advertising is not a simple ‘advertisement’, the purpose of the operator's advertisement is to promote the brand, and indirectly promote the transaction; while the live broadcast with goods is facilitated by the anchor and publicity, the consumer and the operator directly to reach an instant transaction.

Anchor in a live event, there may be both commodity display, but also talent show, cultural dissemination and other content, anchor and consumer two-way interaction, live content may meet certain emotional needs of consumers, the personality of the anchor to drive consumption, which is very different from the content of traditional commercial advertising.

In 2021, seven departments such as the Internet Information Office, the Ministry of Public Security and the Ministry of Commerce issued the ‘Management Measures for Webcast Marketing (Trial)’ for live streaming with goods, of which the first paragraph of Article 2 is about the definition of live streaming with goods, i.e., ‘the marketing of marketing in the form of video live streaming, audio live streaming, graphic live streaming, or the combination of multiple live streaming through Internet websites, applications, and apps. commercial activities. Article 19 of the Measures stipulates: ‘If the live broadcast content released by live broadcast operators and live broadcast marketers constitutes commercial advertisements, they should fulfil the responsibilities and obligations of advertisers, advertisers or advertisers’ spokespersons.’ It can be seen that the approach will live with goods and commercial advertising to make a distinction, only live content constitutes commercial advertising, live related subjects are subject to the regulation of the Advertising Law.

Second, the types of live streaming with goods

The types of live webcasting are broadly divided into the following four types:

1. merchants from the broadcast, that is, merchants to sell goods by way of live webcasting, the anchor is the staff of the merchant, the introduction of its goods is the duty behaviour, the consumer and the merchant to establish a contractual legal relationship of purchase and sale;

2. co-operation live, that is, merchants seek external anchor or MCN cooperation, by the co-operation of the anchor of the merchant's goods to introduce the promotion, consumers through the anchor opened the live room to click on the merchant's link, sales, payment, returns and exchanges by the merchant to complete the anchor is only the merchant's co-operation, and does not establish a direct legal relationship with the consumer, the consumer and the merchant to establish a contract of sale of the legal relationship;

3. anchor self-operated, that is, the anchor will be merchant products into their own shops, consumers into the anchor live room, the payment will be made to the anchor, this time the merchant is the anchor of the supplier, consumers and the anchor, between the anchor and the merchant, each to establish a contract of sale of legal relations;

4. public service live broadcasts, such as the governor of the county in the capacity of a public official to promote local agricultural products through live webcasts.

Third, the manifestation of false propaganda and legal consequences

Typical behaviour of false propaganda are two, one is the product itself for false propaganda, such as product performance, structure, composition, use effect, etc.; the second is the sales of the product for false propaganda, such as the purchase of ‘fake fans’ to enhance the live broadcasting room activity, or fictitious orders to falsely increase the sales of the product.

Operators of false propaganda, in addition to facing administrative penalties, but also to consumers to bear the corresponding civil liability.

Administrative liability of the subject of false propaganda. The Anti-Unfair Competition Law has a broader definition of operators and unfair competition, which is more widely applicable than the Advertising Law, and therefore administrative authorities usually impose administrative penalties on the subject of false publicity in accordance with the Anti-Unfair Competition Law. Article 20(1) of the Anti-Unfair Competition Law stipulates: ‘Where an operator violates the provisions of Article 8 of this Law by making false or misleading commercial advertisements of its goods, or by organising false transactions or other means to help other operators to make false or misleading commercial advertisements, the supervisory and inspection department shall order the cessation of the illegal conduct, and impose a fine of not less than two hundred thousand yuan and not more than one million yuan; the circumstances are serious, and a fine of not less than one million yuan shall be imposed; and the administrative authorities shall impose a fine of not less than one million yuan. fine; where the circumstances are serious, a fine of not less than one million yuan and not more than two million yuan, and the business licence may be revoked.’ In this incident of ‘Northeast Rain Sister’, the law enforcement authorities fined Rain Sister Media Company precisely according to the ‘Anti-Unfair Competition Law’.

The civil liability of the subject of false propaganda. In addition to the civil liability under the Advertising Law, Measures for the Administration of Online Live Marketing (for Trial Implementation), the Anti-Unfair Competition Law and its judicial interpretations, false propaganda may also be subject to the Civil Code, the E-Commerce Law, the Protection of Consumer Rights and Interests Law, the Regulations for the Implementation of the Protection of Consumer Rights and Interests Law, the Food Safety Law, and the Provisions on a Number of Issues Regarding the Application of Law to Trial of Cases of Online Consumption Disputes (I), among other laws, regulations and judicial interpretations. Laws and regulations, judicial interpretations of the regulation. The operator shall fulfil the obligation to return or exchange goods to the consumers in case of false propaganda. In addition, according to Article 55 of the Protection of Consumer Rights and Interests Law, if the operator provides goods or services with fraudulent behaviours, the operator shall ‘refund one and compensate three’.

The author believes that false advertising and consumer fraud are two different legal concepts, not all of the false advertising behaviour constitutes fraud, how to distinguish between the two, this paper will not repeat. If the operator to provide goods are food, according to ‘Food Safety Law’ Article 148 of the provisions of the food safety standards of consumers due to non-compliance with the damage suffered by the operator may face a ‘refund of ten’ legal risk.

Fourth, the path of rights protection after encountering false propaganda

For consumers, such as the purchase of false advertising products should be how to protect their legitimate rights and interests? If the consumer brings a contract dispute, according to the principle of contract relativity, the consumer can only to the other party to the contract to claim liability for breach of contract.

There are many types of live broadcasts, how should the contractual counterparty be determined? First of all, consumers enter the live broadcast, click on the shopping cart link, check the jump into the merchant shop or anchor shop; secondly, look at the recipient is a merchant or anchor, thus determining the contractual counterparty, you can also consider the live broadcast of the other subjects as a litigation third party. In addition, according to Article 17 of the Anti-Unfair Competition Law: ‘Operators who violate the provisions of this law and cause damage to others shall bear civil liability in accordance with the law.’ Therefore, even if the consumer has not established a contractual relationship with the anchor, the consumer can still file a tort liability lawsuit against the anchor if the product causes personal damage to the consumer.

For co-anchor and MCN agencies, such as merchants to co-anchor to introduce the product provides false material, co-anchor unaware and based on this live, this time, although the anchor in the objective to help the merchants false propaganda, but subjectively there is no false propaganda intention.

The author believes that the anchor of the materials provided by merchants have a certain obligation of care: if the business of the false degree of material is obvious, and the anchor has not been further verified, it should still be presumed that there is a false propaganda of the intention of the anchor; if the product of the professionalism of the anchor is not a specialised practitioners of the product, such as the anchor of the product indicators for a comprehensive review, and obviously too harsh. How to determine the standard of the anchor's duty of care, to be further confirmed by judicial practice. For the anchor and MCN organisations, even if the merchant false material external administrative or civil liability, in the performance of the necessary and sufficient duty of care under the premise, according to the contract, to the merchant to claim liability.

For merchants, such as merchants broadcasting, the anchor is a merchant employee, live is the job behaviour, the anchor false propaganda, the merchant should bear the corresponding legal responsibility; such as merchants seeking external anchor cooperation, for the anchor to make their own false propaganda behaviour, the merchant can be based on the two sides of the co-operation contract, to the anchor to claim the corresponding breach of contract liability.