China News Online, April 27th (Reporter Li Shuzheng) Shanghai No. 1 Intermediate People's Court (hereinafter referred to as Shanghai No. 1 Intermediate Court) has revised its judgment in accordance with the law in the case of a top member v. "Dianping" in the dispute over online infringement liability. Judgment on the public comment platform to revoke the “three-level penalty” record of Mr. Bi’s account; restore his account’s contribution value of 43,143 points; reissue a “PASS” card; compensate Mr. Bi’s attorney fees and notarization fees totaling 5,000 yuan, and reject Mr. Bi’s remaining lawsuits please.
In 2015, Mr. Bi registered as a Dianping user with his mobile phone number.
Mr. Bi claims to be at home all year round due to illness and has plenty of time to be active on the Dianping platform.
Over time, Mr. Bi published a large number of texts, pictures, videos, etc. on the platform, and slowly gained the attention of many users, becoming a top member of Dianping Lv8.
From September 25th to October 9th, 2019, the Dianping platform monitored that the daily likes of Mr. Bi’s account were 11,000-25,000, of which 1,000-2,000 per hour for multiple consecutive hours.
After more than half a month, the platform again monitored the number of likes in Mr. Bi's account. There were 1600-4000 likes per hour for more than 10 consecutive hours, and one like took less than one second.
Based on the combination of system monitoring data and human experience judgment, Dianping believes that the like data of Mr. Bi’s current account is abnormal and not his own.
Therefore, Dianping issued a pre-penalty notice to Mr. Bi in accordance with the "Dianping User Terms of Service" and "Meituan Dianping User Integrity Convention": "Interfering or creating false fan numbers and page views by buying fans or third-party software. Social data such as the amount of likes and likes will be deducted 9 points for his integrity.” After Mr. Bi’s appeal failed, a “three-level penalty” decision was made.
Punishment measures include: pre-penalty period for non-selected reviews, deduction of the contribution value of illegal reviews, and ban on posting of reviews for 90 days; deduction of 50% of the current contribution value; withdrawal of VIP; cancellation of the rights and interests of member annual meetings; prohibition of applying for platform organizations Free activities such as Bawang Meal for 90 days; Forum publicity.
Mr. Bi believed that Dianping’s punishment was unfounded and violated its property rights and reputation rights, so he took Dianping to court and demanded to revoke the three-level penalty record for his account; increase its account contribution value by 56643 points , Which includes 43,143 points deducted during punishment and 13,500 points lost due to reviews during the punishment period; at the same time, it is required to reissue a "PASS" card of its account; to publish the detailed rules and basis related to Dianping's integrity punishment on the platform; to grant it One place for the "Big V Annual Meeting"; an apology and financial compensation will be made to oneself.
In the first instance, Mr. Bi gave a thumbs-up demonstration in court, with 91 thumbs-ups in one minute.
After hearing the trial, the court of first instance held that Mr. Bi’s act of liking did not conform to the behavioral characteristics of general liking behavior, and could not realize the true liking function, so Mr. Bi’s behavior would indeed disturb the normal order of the platform.
Therefore, the Dianping platform's punishment of Mr. Bi in accordance with the "Meituan Dianping User Integrity Convention" does not constitute an infringement, and the judgment dismissed all of Mr. Bi's claims.
Mr. Bi refused to accept and appealed to Shanghai No. 1 Intermediate Court.
In the second trial, Mr. Bi insisted on his first trial petition and stated that due to physical reasons, he had more time and energy than ordinary people to interact on the Dianping platform. The act of liking was also a concrete manifestation of his “reciprocity exchanges” with other users.
Mr. Bi believes that the user can like a piece of content as long as he likes the like function, and it usually likes the essential content recommended on the homepage, which is his own behavior.
Dianping said that this kind of long-term, high-frequency and extremely abnormal like behavior does not conform to the behavioral characteristics of natural persons, and the purpose of setting up likes on the platform is to allow users to express recognition of the content published by others after browsing, reading and thinking. And through this public recognition, provide other users with a more objective, true and effective reference basis for consumption.
If meaningless or even false evaluation behaviors are allowed to occur, other users will make wrong judgments in their consumption choices, which will inevitably have a negative impact on the authenticity and fairness of platform data.
Therefore, the punishment is lawful and well-founded and does not constitute infringement.
Regarding whether it is possible to determine whether Mr. Bi has “buy fans or use third-party software to intervene or create false likes and other social data”.
The Shanghai No. 1 Intermediate People's Court believes: First, Dianping failed to provide direct evidence to positively prove that Mr. Bi did not like him, such as the amount of likes derived from multiple or suspicious device terminals and network addresses; instead, through data The comparison and description of the reverse presumption.
Second, Mr. Bi demonstrated his ability of 91 high-speed likes per minute in the first-instance trial, and Dianping simply denied the possibility of Mr. Bi's maintaining this rate for a long time, and did not provide further evidence for this.
Third, from the point of view of the platform’s likes path, Dianping has not implemented technical regulations, and users can quickly like them without browsing specific content.
In addition, considering individual differences, according to the data presented by Mr. Bi in court, it is difficult to rule out the possibility of his manpower.
Therefore, without direct evidence to prove that Mr. Bi has “buy fans or use third-party software” to like the behavior, it is difficult to make a highly probabilistic presumption that is not his own.
Dianping failed to fulfill the obligation of proof on its claims, and Mr. Bi’s actions were not directly placed within the scope of the punishment basis.
Regarding if it is difficult to determine that Mr. Bi’s behavior is not his own, then is Mr. Bi’s like behavior still punishable by the public comment?
The Shanghai No. 1 Intermediate People's Court believes that: First of all, Dianping did not specify in its rules the function and value of likes on its platform, nor did it enumerate what circumstances can or cannot be done.
In real life, users will also like it due to various situations.
Dianping currently provides a limited interpretation of the function and value of likes in the lawsuit, which exceeds the general prediction and lacks basis.
Secondly, Dianping believes that even if it is Mr. Bi himself, the data generated by his indiscriminate likes is false.
And this judgment standard goes beyond the general literal understanding of Dianping's punishment reasons.
Finally, there are many ways to manage, and punishment should be the last resort.
Dianping argues that Mr. Bi’s actions disrupted the order of the platform, but did not provide evidence to prove that the abnormal amount of likes directly caused a substantial impact or a major threat to the order of the platform, nor did it prove that it was taking management measures such as "cancel abnormal likes data". In addition, the necessity and rationality of "three-level punishment" must still be imposed.
Did the punishment on Dianping infringe Mr. Bi's rights and how should he be held accountable if he infringed?
The Shanghai No. 1 Intermediate People's Court believes that Dianping's punishment behavior lacks basis.
The contribution value deducted due to penalty is the reward that Mr. Bi obtains through publishing reviews and other actions. It can be used to redeem “Overlord Meal”, coupons and other real rights and interests, and belongs to Mr. Bi’s legal property rights.
Although the "PASS" card that expires due to the penalty is a virtual network card, it can accept the services of real businesses for free, and it also has property attributes.
Dianping should bear tort liability in accordance with the law.
The Shanghai No. 1 Intermediate Court then made the above-mentioned revised judgment.
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