■Our reporter Zheng Tiefeng
A perm photo was posted online by a businessman and turned into an advertisement, but the consumer himself did not know it. A barber shop in Yongkang City, Zhejiang Province not only apologized, deleted the infringing photo, but also compensated the consumer 1,548 yuan for infringing on the consumer's portrait right. .
Consumers complain that face-to-face perm photos were used for advertising by store owners without authorization
On March 2, 2021, Xiao Yanghua, a young man from Yongkang, permed his hair for 406 yuan at a local barber shop. After the perm was cut, the barber said "the cut is very handsome".
Xiao Yang wanted to take a selfie with his mobile phone, but the barber said, "There is a digital camera in the store, let someone in the store take pictures for you, and I will send you WeChat after the photo is done." .
On January 15, 2022, a friend sent two screenshots of Xiao Yang during the group chat. At this time, Xiao Yang discovered that the photos he took when he permed his hair last year were used by the store on Meituan and Douyin. advertised.
On the same day, Xiao Yang communicated the theory with the shop, and the barber shop quickly apologized and deleted the corresponding photos on Meituan and Douyin, but did not respond to its claim.
Subsequently, Xiao Yang complained to the local Consumer Protection Committee on the grounds of "infringement of consumers' portrait rights", claiming 2,000 yuan for related property and spiritual losses caused by the infringement.
The barber shop admitted that it sent the photos to Meituan and other platforms to display the work of the barber without the consent of the consumers themselves, which is true.
"Consumers give praise, and we will post it online." The store said that it has been doing this for many years, and this is the first time it has received a similar complaint.
In this regard, Xiao Yang said that the praise of the store's perm (photography) service does not mean that he agrees to the store's use (public) of his face-showing perm photos for advertising.
The Consumer Protection Commission said that the unauthorized use of other people's portraits in advertisements is illegal and infringing, and should be held responsible
After investigation, Yongkang Consumer Protection Committee held that according to the "Consumer Rights Protection Law", "Advertising Law", "Civil Code", "Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes Concerning the Use of Information Networks to Infringe Personal Rights and Interests", "Supreme People's Court" The Court's Interpretation on Several Issues Concerning the Determination of Liability for Compensation for Mental Damage in Civil Torts" and other laws and regulations stipulate that personality rights are the rights to life, body, health, name, name, portrait, reputation, honor, Privacy and other rights.
When consumers receive services, they have the right to be respected for their personal dignity and to have their personal information protected in accordance with the law.
Natural persons enjoy the right to portrait, and no organization or individual may infringe upon it.
Without the consent of the likeness rights holder, the likeness of the likeness rights holder shall not be produced, used or published, except as otherwise provided by the law.
Without the consent of the owner of the portrait right, the owner of the portrait work shall not use or publish the portrait of the owner of the portrait right by publishing, copying, distributing, renting, exhibiting, etc.
Advertisers or advertising operators who use other people's names or images in advertisements shall obtain their prior written consent.
Advertisers, advertising operators, and advertising publishers violate the provisions of this Law and use the name or image of others in advertisements without consent, which is a tortious act and bears civil liability in accordance with the law.
In this case, the barber shop involved, as the operator, photographer and advertiser, used and made public the perm photos of his face without the consent of Xiao Yang when conducting commercial advertisements (exhibitions) on the Internet, which is not a reasonable use permitted by law. Portrait behavior should be considered to be at fault, which has constituted an infringement of consumers' right to portrait, and also constituted an infringement of using other people's images in advertisements without consent, and should bear the tort liability of stopping the infringement, eliminating the impact, making an apology, and compensating for losses. .
As a result of the processing, the merchant apologizes, deletes the infringing photos, and compensates for the loss
Losses caused by infringement can be divided into property damage and mental damage; mental damage can be divided into serious and non-serious.
The amount of compensation for damages is the focus of the dispute between the two parties and the difficulty of producing evidence.
Although Xiao Yang failed to prove the property damage he suffered and the actual profit of the store due to the infringement, the photo of Xiao Yang involved in the case was used by the store on the online store operated by him without authorization. , and as one of the selling points of the service sold by the store, it has a clear commercial promotion intention, and the advertisement (exhibition) lasts for a long time, which will inevitably bring certain publicity benefits to the store.
Yongkang Consumer Protection Committee recommends that both parties comprehensively evaluate each other's occupation, popularity, scope of influence, the degree of fault of the store, the purpose of infringement, the method, the occasion, the sales price and sales volume of the services involved, and reasonably negotiate the specific compensation amount as appropriate.
On January 25, 2022, after negotiation, the two parties agreed to calculate the amount of infringement compensation based on "6 orders of the service involved have been sold and the sales price is 258 yuan per order" during the infringement period, and the barber shop compensated Xiao Yang 1,548 yuan on the spot.