Did celebrity sales fail again?! A news report over the weekend about celebrity Huang Shengyi's endorsement of a cured meat brand being reported to the police has attracted attention. In recent years, online live streaming sales have become an emerging industry, with many "internet celebrities" and celebrities appearing in live streaming rooms to become "grass planting experts", attracting fans to place orders and make important contributions to driving consumption and stimulating economic growth. However, this business model is not yet mature, and many problems have gradually been exposed. Controversies over celebrity sales and top anchors frequently appear on hot searches. As the builders of virtual spaces, the role of the platform cannot be ignored. Depending on their specific actions, their legal responsibilities also vary.

statute

November 5, 2020

The State Administration for Market Regulation has issued the "Guiding Opinions on Strengthening the Supervision of Online Live Streaming Sales Activities" (hereinafter referred to as the "Guiding Opinions"), which has conducted preliminary legal characterization of the various entities involved in online live streaming sales activities and standardized the fourteen behaviors involved in live streaming sales.

May 2021

The laws targeting online live streaming sales mainly include the E-commerce Law, the Anti Unfair Competition Law, and the Advertising Law. From May 25, 2021, the Administrative Measures for Online Live Broadcasting Marketing (for Trial Implementation) jointly issued by the State Internet Information Office, the Ministry of Public Security, the Ministry of Commerce, the Ministry of Culture and Tourism, the State Administration of Taxation, the State Administration of Market Supervision and Administration, the State Administration of Radio and Television and other seven departments will be officially implemented, which defines the concepts of live broadcasting marketing platform, live broadcasting room operator, live broadcasting marketing personnel, live broadcasting marketing personnel service organization, etc, Further strengthen the main responsibilities of all parties involved.

March 15, 2021

The State Administration for Market Regulation has issued Article 2 of the "Measures for the Supervision and Administration of Online Transactions", which specifically states that "business activities that sell goods or provide services in information network activities such as online social networking and live streaming shall be subject to these measures."

March 1, 2022

The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Online Consumer Dispute Cases (1) have been promulgated. This judicial interpretation aims to protect the legitimate rights and interests of consumers in accordance with the law and promote the healthy and sustainable development of the online economy.

Starting from May 1st, 2023

The Measures for the Administration of Internet Advertising promulgated by the State Administration of Market Supervision has officially come into force, in which Article 19 clearly stipulates that "if a commodity seller or service provider promotes a commodity or service through live Internet broadcasting, which constitutes a commercial advertisement, it shall bear the responsibilities and obligations of the advertiser according to law."

Legal Liability of Live Streaming Sales Platforms

1. Concept

Live broadcast e-commerce refers to the e-commerce form that achieves the marketing purpose through some Internet platforms and takes live broadcast as the channel, reconstructs the three elements of "people, goods and market", and carries out online commodity display and product promotion. It is the product of two-way integration of live broadcast and e-commerce in the digital era. There are two commonly used modes of online live streaming sales: first, product operators promote their products to audiences through live streaming platforms. The "sales" anchor is a specialized staff member within the operator, and this sales method is also known as self operated live streaming. At this time, the main participants of live streaming sales only include the live streaming platform, operators, and consumers. But there are also cases where the operators themselves are celebrities or internet celebrities. Secondly, in the process of selling products, based on the Internet platform, we cooperate with the more famous "online celebrities" (stars and officials), and use the influence of "online celebrities" to introduce and recommend products, which is also called "assisted live broadcast". At this time, the main participants of live broadcast with goods include four levels: live broadcast platform, "anchor with goods", operators and consumers. In assisted live streaming, it is possible for merchants to reach agreements with a single anchor, or for merchants to reach agreements with brokerage firms. These "internet celebrities" can use their influence to participate in the live sales of multiple products simultaneously. Whether it is traditional e-commerce platforms+live streaming, transforming from graphic and text shelving e-commerce to live streaming e-commerce, or entertainment social platforms+e-commerce, realizing the e-commerce function based on "live streaming+e-commerce" live streaming entertainment, their genes are actually e-commerce, promoting consumption upgrading, enhancing marketing scenarios, improving product transaction efficiency and consumer loyalty through live streaming by anchors (internet celebrities, celebrities, government officials, etc.). [1] Merchants, live streamers, platforms, and consumers are the main structure of live streaming sales.

Paragraph 2 of Article 2 of the Measures for the Administration of Online Live Broadcast Delivery (for Trial Implementation): The "live broadcast delivery platform" referred to in the Measures refers to various platforms that provide live broadcast services in online live broadcast delivery, including Internet live broadcast service platform, Internet audio and video service platform, e-commerce platform, etc.

2. Classification

One is an e-commerce platform that provides live streaming services, mainly represented by e-commerce platforms such as Taobao, Tmall, and JD.com. The platform combines the original e-commerce development of "live streaming+e-commerce" services, mainly serving network users with clear shopping purposes; The second is a platform providing content as the main business, mainly represented by Tiktok, Kwai, Xiaohongshu and other platforms, mainly providing short videos and text content. Some anchors whose number of fans and registration time meet the requirements of the platform can open the function of taking goods. Most of the users' shopping trips need to be completed by jumping to other platforms, while some can be completed on the platform; The third is the Internet live broadcast platform, which is mainly represented by platforms such as Douyu and Tiger Teeth. Businesses mainly combine the platform anchor to determine the co anchor based on the fan flow generated by the live broadcast and carry out joint marketing activities. The products marketed are usually closely related to the live broadcast segment of the anchor. The way of online live broadcast with goods is still not separated from the legal scope of producers, sellers, operators, Internet information service providers, advertisers, advertising operators, e-commerce, etc.

3. Responsibility

In live streaming platforms, anchors promote products to users and complete product sales through live streaming. The live streaming platform provides a venue for live streaming activities, channels for communication between anchors and users, such as publishing product information, matching transactions, etc., and traffic support, promotion, and recommendation for anchors and live streaming rooms. It uses the influence of large platforms to guide consumers, such as recommending and promoting on the homepage, Three provides technical support for live streaming activities, such as services for redirecting purchase links, audio and video playback services, etc., to quickly switch between "live streaming and purchase". [2] In combination with the definition of e-commerce platform operator in Article 2, paragraph 2, and Article 9 of the E-commerce Law, and considering the objective situation that the scope of the current e-commerce platform business subject has gradually changed with the innovation of Internet technology and the diversification of online marketing models, Internet live broadcast platforms, Internet audio and video platforms and other platforms that mainly produce and provide content, If the services actually provided by the parties to the transaction comply with the relevant definitions of the aforementioned E-commerce Law, it should also be recognized that the platform it operates is an e-commerce platform. [3] According to Article 2 of the Measures for the Management of Online Live Broadcast with Goods (Trial), typical platforms such as Taobao, JD, Tiktok and other Internet platform enterprises, this article emphasizes that the main function of the platform is to provide live broadcast services.

Guiding Opinions on Strengthening the Supervision of Online Live Streaming Sales Activities: Online platforms provide operators who sell goods or provide services through online live streaming with online business premises, transaction matching, information release, and other services for independent trading activities by both or multiple parties. In particular, online platforms open up the function of network live streaming promotion service operators to settle in Those who provide live streaming technology services to operators who promote goods or services through online live streaming should fulfill the responsibilities and obligations of e-commerce platform operators in accordance with the provisions of the E-commerce Law. If an online platform provides paid diversion services for commodity operators (including service providers, the same below) or online live streamers to promote and advertise online live streaming sales activities, and constitutes commercial advertising, it shall fulfill the responsibilities and obligations of the advertising publisher or advertising operator in accordance with the provisions of the Advertising Law. When online platforms provide online live streaming technology services to their consumers in other ways, they should apply the relevant responsibilities and obligations of e-commerce platform operators in the E-commerce Law or the responsibilities and obligations of network service providers in accordance with specific circumstances such as whether the platform participates in operation, commission sharing, and the platform's control over consumers.

Write at the end

At the beginning of the rise of the Internet, based on the principle of "technology neutrality", the network platform, as a network service provider, only undertook the obligation of "notification deletion" under the "safe harbor" rule. However, with the popularity of emerging technologies such as 5G, artificial intelligence, and blockchain, personalized recommendations of algorithms are precise to every corner of the online world, and efficient operation management and massive user attention continuously promote the updating and iteration of electronic business models. Nowadays, live streaming sales platforms are deeply involved in the commercial process of live streaming sales, and it is understandable for them to pursue profits as market entities. However, their legal responsibilities should also be continuously clarified and defined according to the benefits obtained, in order to comply with the principle of "balance of interests".

References and comments (slide down to view)

[1] Cheng Yang and Wang Yongzhao: "Risks and Prevention of Live E-commerce from the Perspective of Legal Regulation", published in Northern Media Research, Issue 5, 2023.
[2] Zhou Shuo: "Legal Liability of Live Streaming Platforms in Online Live Streaming Sales", published in the 7th issue of "Legal Application" in 2022.
[3] The Identification of the Nature and Responsibility Boundary of the Live Broadcast Cargo Platform was published on the official account of "Zhichanli" at 18:10 on February 9, 2023 in Beijing.