P2P thunderstorm, celebrity endorsement fee is not refundable how to refund
Expert: endorsement of non-life and health products bear responsibility for fault
● Endorsement promotion, this is a market transaction that you like and I want.
The final buyer of this transaction is often a third party-the consumer.
Especially for financial products, once there is a thunderstorm, the common result is that the money maker escapes, and consumers suffer heavy losses.
● From the public's point of view, the winners must bear the burden. Stars charge huge endorsement fees for the P2P platform, and they will naturally bear the responsibility for problems.
● Relevant regulatory agencies emphasized the responsibilities of celebrity endorsements, and proposed to recover celebrity endorsement fees and advertising fees in accordance with the law, but did not specify the accountability measures
● The current difficulty lies in how to judge whether a celebrity knows or should know that the advertisement is false and still recommends it. "Knowing or should know" is not easy to define, so it is difficult to determine whether there is a false endorsement, and it is even more difficult to hold it responsible
□ Our reporter Zhao Li
□ Intern Xie Yihong
More than two months ago, the relevant person in charge of the China Banking and Insurance Regulatory Commission said when introducing the existing risk disposal work of online lending institutions that he would speed up the recovery of stolen goods and recover losses, and recover executive bonuses, celebrity endorsement fees, and advertising fees in accordance with the law.
In the past two days, a big Internet V has issued a proposal that the endorsement star should be held accountable and ordered to refund the money to the victims of the P2P thunderstorm, which once again aroused public debate.
In fact, under the background that many celebrity endorsements have "turned over" recently, public opinion has been onlookers, whether P2P explosions should be held accountable for endorsing celebrities, celebrity endorsement fees and advertising fees are not refundable, and what is the legal basis for requesting the refund? The popularity of the Internet has been unabated.
Several legal experts said in an interview with a reporter from the Rule of Law Daily that after a P2P explosion, celebrity endorsement fees and advertising fees should be refunded in accordance with the law.
In addition, it is more complicated to determine what responsibilities a celebrity has to bear, such as whether a fine is required.
The current difficulty lies in how to judge whether a celebrity knows or should know that the ad is false and still makes a recommendation.
Because "knowingly or ought to know" is difficult to define, it is difficult to determine whether there is a false endorsement, and it is even more difficult to require it to bear corresponding responsibilities.
P2P platforms frequently explode
Celebrity endorsements have repeatedly overturned
P2P is a peer-to-peer lending platform for Internet finance.
In the past few years, my country's Internet financial lending has entered a stage of rapid development. Many P2P platforms have hired celebrity endorsements to quickly open and expand the market with the help of celebrities’ popularity and traffic.
However, as the country's special rectification of Internet financial risks and P2P network lending risks continue to deepen, the P2P platform endorsed by celebrities continues to explode.
According to public data, since 2015, at least 30 celebrities have used "chief experience officer", "image spokesperson" or shareholding, for e Zubao, Zhongjin Assets, Tuandai.com, Ai Investment, Aiqianjin, etc. 10 A number of P2P platform sites, involving celebrities including Huang Xiaoming, Fan Bingbing, Zhang Tielin, Wang Han, Du Haitao, etc.
Discussions about "whether the celebrity should be responsible for the endorsed P2P product" were once raging.
But judging from previous public reports, the endorsement stars did not respond much. Even if they did, they mostly apologized, avoiding the question of whether to refund endorsement fees and advertising fees.
For example, the host Wang Han is on the Weibo hot search list because of his endorsement of love for money.
Wang Han explained the situation to the regulatory authorities regarding the endorsement of the online lending platform and publicly apologized.
Endorsement promotion, this is a market transaction that you like and I want.
Celebrities use reputation and traffic in exchange for profit, with more money and less work; companies use money to buy influence under reputation and traffic to expand their audience.
The final buyer of this transaction is often a third party—consumer.
Especially for financial products, once there is a thunderstorm, the common result is that the money maker escapes, and consumers suffer heavy losses.
In the dispute caused by the host Du Haitao’s endorsement of the P2P platform Netease, an investor of Netease’s wealth management app said that he saw the advertisement endorsed by Du Haitao before starting to invest in Netease and lost more than 1.2 million yuan. Yuan.
In July 2020, the investor of the P2P platform Youli.com commented on the artist Yang Di's Weibo: As a spokesperson, Yang Di should give an account for the alleged fraud of the platform.
Under the condemnation of netizens, Yang Di subsequently issued a statement stating that he was not a spokesperson and did not charge any fees for recording the promotional video, and apologized to the audience who suffered the loss.
To benefit, you must bear the weight
How to take responsibility is controversial
From the public's point of view, the winners must bear the burden. Some celebrities charge huge endorsement fees for P2P platform platforms, and they will naturally take responsibility for problems.
Insiders said that the endorsement behavior of celebrities and other public figures is a commercial activity and is subject to laws and regulations such as the Advertising Law and the Consumer Rights Protection Law.
At the same time, endorsement financial products should also be regulated by financial regulatory laws and regulations.
Liu Junhai, a professor at Renmin University of China Law School, said that the Advertising Law stipulates the duties and responsibilities of advertising spokespersons, and the definition of advertising spokespersons is clearly defined in the General Provisions.
The liability clause for advertising spokespersons is mainly Article 61 of the Advertising Law, that is, the advertising spokesperson has "recommended or certifies for unused goods or unreceived services", "knowingly or should know that the false advertisement is still in the advertisement" The illegal income shall be confiscated and a fine of more than one time and less than two times the illegal income shall be confiscated.
Wu Jingming, associate professor of economic law at China University of Political Science and Law, analyzed that the advertising law divides the responsibilities of celebrity endorsements into two categories: one is products that are false endorsements related to life and health, and this category bears direct joint and several liability, that is, unconditional joint liability; The second category is to endorse products that are not related to life and health, and assume fault responsibility, that is, if the spokesperson does not have any intention or negligence subjectively, he will not be liable, and if there is intention or negligence, then he shall be liable.
How to judge this "intentional" and "negligence"?
Wu Jingming explained: "If you know that it is false and deceptive and continue to endorse, it is'intentional'; but you should know it without knowing, and fail to fulfill your duty of care to endorse an illegal product, it is'negligence'. Take responsibility."
Some people in the industry have pointed out that it is more complicated to determine the specific responsibilities that celebrity endorsements have to bear if there are problems.
The advertising law mainly targets false endorsements, even if fines are involved, they will be punished by the regulatory authorities under certain circumstances.
However, the condition of "knowing or ought to know" of the spokesperson in the Advertising Law may not be well defined, so it is difficult to determine whether there is a false endorsement, and it is even more difficult to require him to bear joint liability.
"As for'knowing or ought to know', it is difficult to determine this." said Zhao Zhanzhu, a special researcher of the Intellectual Property Research Center of China University of Political Science and Law. Because of the need to go back to his advertising language, how does the advertising spokesperson review the advertising language and to what extent , There are certain difficulties in itself.
Moreover, a thunderstorm on the P2P platform may also be caused by other illegal activities during the operation process, which may not necessarily involve false advertising activities, so this also makes it difficult to recover celebrity endorsement fees.
But in Liu Junhai's view, the condition of "knowing or ought to know" for advertising spokespersons is very well defined: Have you ever used this financial service?
Do you know that the business model launched is illegal?
If you know it, it means committing it knowingly, that is, malicious or deliberate; if you should know it without knowing, it means that it is a gross negligence. "If you don't have a professional level, you shouldn't do this advertising endorsement."
Some lawyers believe that the current difficulty lies in how to clarify the rights and responsibilities of all parties, and the focus is on whether there is a situation in which advertisements are designed, produced, represented, published, recommended, or certified if they know or should have known that the advertisement is false.
Steady progress in recovery of stolen goods
Recover endorsement fees in accordance with the law
In fact, since the beginning of this year, regulatory authorities have successively spoken out about the responsibilities of celebrity spokespersons, but they have not clarified the specific responsibilities and accountability measures of celebrity spokespersons.
At the beginning of this year, Beijing Chaoyang District Financial Dispute Mediation Center issued the "Announcement on Requirement of Advertising Spokespersons of P2P Online Lending Institutions to Cooperate in Implementing Risk Mitigation Responsibilities." Advertising spokespersons use their influence to attract investors to buy illegal financial products.
The above-mentioned advertising spokesperson failed to fulfill reasonable inspection obligations, made false propaganda, was at fault for the occurrence and expansion of the damage results, and bears inescapable responsibility.
In the above announcement, the Beijing Chaoyang District Financial Dispute Mediation Center requires natural persons, legal persons or other organizations (ie advertisements) that have or are still involved in P2P online lending advertisements to recommend and certify related products and services in their own name or image. Spokesperson) Cooperate with the clearing of online loan platforms.
If you fail to get in touch as scheduled, you will be held accountable in accordance with the law.
On April 22, the Consumer Rights Protection Bureau of the China Banking and Insurance Regulatory Commission issued a risk warning for the second phase of 2021, which also emphasized the responsibilities of celebrity spokespersons, but did not specify the accountability measures.
The risk reminder stated that celebrities and other public figures who endorse should abide by the Advertising Law and other laws and regulations, and must not recommend or certify unused products or services they have not received, and that they must not know or should know that the advertisement is false and still make recommendations or certifications. .
Before accepting endorsements, it is necessary to check whether the endorsement agency has legal qualifications, and whether the endorsed products and services are true in content and meet regulatory requirements.
"This means that after the P2P platform explodes, the celebrity spokesperson bears an inescapable responsibility and needs to recover the endorsement fee." Liu Junhai believes that in addition, it is more complicated to determine what responsibilities should be borne.
According to the relevant person in charge of the China Banking and Insurance Regulatory Commission, as of the end of March this year, there were 1,387 closed online lending institutions whose stock business had not yet been cleared, 79 less than the end of last year, and the outstanding loan balance was 716.1 billion yuan, a decrease of 104.6 billion yuan from last year.
Among them, for 999 institutions that have filed a case, coordinate the public security, judicial and other departments in accordance with the law to speed up the progress of the trial.
Earlier, in the 2021 special rectification work video conference, the supervisory authorities mentioned the progress of the recovery when explaining the relevant work.
The leading group for the special rectification of online lending risks stated that the work of recovering stolen goods has been steadily advancing, and Beijing, Guangdong, Shenzhen and other places have achieved certain results in recovering celebrity endorsement fees, advertising fees, and executive bonuses in accordance with the law.
The total value of the assets involved in the case recovered by the public security organs was approximately 86 billion yuan.
Liu Junhai analyzed that in the process of investigating P2P crimes, the advertising spokesperson was recovered from the stolen money, which was a punishment made in accordance with the Criminal Law and the Criminal Procedure Law.
Moreover, the recovery of stolen goods in the criminal field cannot replace the compensation in the civil field.
One is the confiscation of illegal proceeds by law enforcement agencies; the other is joint liability to financial consumers.
"From the relevant cases of illegal fund-raising and fund-raising fraud, the core of judging whether it is illegal is whether they actively or non-actively understand the situation when promoting illegal and illegal products. From the case of celebrity endorsements, if they know that it is illegal Probably they will not be promoted, so currently they are generally not liable for violations of the law, and no fines have been imposed on them." said Yin Zhentao, director of the Financial Technology Research Office of the Institute of Finance of the Chinese Academy of Social Sciences.