"Compliance" is the string, stars must tighten up
Product endorsements or live broadcasts have repeatedly overturned expert advice
● Celebrities, as product spokespersons, have the use of their own influence to express their own recommendation intentions, thus playing the role of guaranteeing the endorsed products
● Once a celebrity promises to endorse a product, it will be transformed into a commercial entity participating in advertising activities.
Different legal entities imply different obligations and responsibilities.
If there is a problem with the products brought by celebrities, they should still bear the responsibility as the main body of the advertising spokesperson, mainly based on the relevant provisions in the Advertising Law, and take civil, administrative and even criminal responsibility in combination with the consequences and extent of damage caused by their actions.
● Regarding the measurement standard of the spokesperson's subjective fault, the court usually takes the duty of care of ordinary people as the measurement standard of the duty of prudence, rather than the higher duty of review. In practice, it is difficult to determine that the spokesperson knows or should know that the advertisement is false situation, and the advertising spokesperson cannot be sentenced to be jointly and severally liable for damages
□ Our reporter Han Dandong
□ Our intern Guan Chuyu
The chain stores endorsed by celebrities are suspected of joining fraud, and the financial products endorsed by celebrities frequently explode; for liquor with a market price of 4,500 yuan, the celebrity claimed in the live broadcast room that he had obtained the cheapest price for everyone through efforts to control the price, but the result was 4,799 yuan; "A certain brand of cosmetics, priced at 29.9 yuan and 9.9 yuan, was accused of blatantly selling fakes...
In recent years, problems with celebrity endorsement products have occurred frequently, some involving false propaganda, and some product quality problems.
Especially with the rise of e-commerce platforms, more and more celebrities are promoting and recommending products through "live streaming" and "planting grass". Problems with "three-no" products and fake products occur from time to time.
People can't help but ask: If there is a problem with a celebrity endorsement product, how should you be held responsible?
Endorsement products frequently roll over
An apology is not exempt
In 2015, the implementation of the new advertising law, known as the "strictest in history", sounded the alarm for celebrity endorsements.
However, since then, celebrity endorsement rollover incidents still occur from time to time.
In May 2021, the milk tea brand store endorsed by Ma Yili was suspected of being involved in franchise fraud. Ma Yili Studio issued a statement saying that it had received a notice from the Shanghai police, and had immediately proposed to terminate the contract and actively cooperate with the police. At the same time, it apologized to the deceived consumers and franchisees. .
In April 2022, the product "House of Yan" endorsed by many celebrities was exposed to false propaganda and inducing mass consumption. The China Securities Regulatory Commission asked relevant companies to explain whether there was false propaganda.
It is worth noting that at present, more and more celebrities are promoting and recommending products through "live streaming" and "planting grass", which is different from the traditional endorsement method, and there are many problems.
How should this behavior be defined?
In response to this problem, in April this year, the Jiangsu Provincial Market Supervision Bureau issued the "Guidelines for the Supervision and Law Enforcement of Commercial Advertising Endorsements" (hereinafter referred to as the "Guidelines"), which clarified the criteria for 11 specific situations, among which the situations that constitute commercial endorsements include: 7. It is clearly illegal to publish commercial advertisements in the form of "planting grass", so that consumers cannot identify it as an advertisement, and is deceived and misled by the content of the advertisement. It is an illegal commercial endorsement act.
Ma Lihong, a lawyer from Beijing DHH Law Firm, analyzed that according to the Advertising Law, an advertising spokesperson refers to a natural person, legal person or person other than the advertiser who recommends or certifies goods and services in their own name or image in an advertisement. other organizations".
That is to say, celebrity endorsements use their own name or image to "recommend" and "proof" the endorsed products, that is, as product spokespersons, celebrities have the intention of using their own influence to express their recommendation intentions, thus guaranteeing endorsement products. effect.
According to public reports, after the endorsement products went wrong, the stars generally responded by issuing a statement apologizing and canceling the contract with the brand.
Can the star do this to draw a clear line from the problem product?
Zhen Jingshan, deputy director of Beijing Xingquan Law Firm, said that celebrities, as public figures, can significantly enhance the popularity and reputation of products through product endorsements, bringing huge economic benefits to product producers and sellers.
In the process of celebrity endorsement, if the endorsed product is a problem product, such as a "three-nothing" product, it will have a very bad impact.
"Celebrities recommend problematic products and 'three no' products to consumers, which may directly damage consumers' legitimate rights and interests such as personal and property; producers and sellers of problematic products grab huge amounts of illegal benefits by asking celebrities to speak for themselves, which will cause serious damage. It will damage the confidence and enthusiasm of enterprises that produce and sell legal and high-quality products, and compress the living space of enterprises operating with integrity." Zhen Jingshan analyzed.
Che Xingxing, a national first-class director, put forward: "It is understandable for a celebrity to endorse a product for a company, but it is necessary to know whether there is a problem with the endorsed product, whether it is a 'three no' product, etc. You can't ignore it, take the endorsement fee, and close your eyes to endorse the product. If there is a problem with the endorsed product, you cannot apologize, and you must bear the corresponding legal responsibility.”
Problems with live delivery
Define identity and take responsibility according to law
With the development of e-commerce live broadcasts, more and more celebrities have joined the live broadcast and brought goods, and many of them have been exposed to false propaganda and sales of fake goods.
This year's CCTV 3.15 party exposed the chaos of live broadcasts, and then "stars suspected of false propaganda selling alcohol" rushed to the hot search.
In addition, celebrities who were exposed by the media to sell fakes in the live broadcast room include Shu Chang, Xie Mengwei, Lou Yixiao, Chen Yiru, Li Jinming, etc.
Shu Chang once sold double-digit 999 gold in the live broadcast room, and also said that it was real gold, and some consumers said that after buying it back and wearing it for 3 days, it became an "iron ring".
Chen Haisong, a professor at Wuhan University Law School, pointed out that if a star is suspected of false propaganda or product quality problems during the live broadcast, it is more important to define the star's identity at this time. Different identities have different responsibilities.
Chen Haisong explained that there are two modes for anchors to bring goods, namely self-delivery and entrusted goods.
Self-delivery is mainly for the anchor to bring goods for his own products; in the entrusted delivery, the anchor plays the role of advertisement publisher or advertising spokesperson.
The fact that celebrities bring goods generally belongs to the situation of entrusting goods, and the essence is still to endorse the product, and it should be regarded as having an advertising nature.
Just compared with traditional advertising, the form of product display is more colorful, and the effect of product display is more comprehensive and intuitive.
"Once a star promises to endorse a certain product, it is transformed into a commercial subject participating in advertising activities. Different legal subjects mean different obligations and responsibilities. If there is a problem with a star's product, it should still be the subject of the advertising spokesperson. Identity responsibility, mainly based on the relevant provisions in the Advertising Law, combined with the consequences and extent of damage caused by their actions, bear civil, administrative and even criminal responsibility." Chen Haisong said.
Che Xingxing believes that celebrities are not ordinary staff, and the particularity of their identities determines that celebrities generally have a certain social appeal and social influence.
Stars bringing goods must strictly abide by the relevant laws and regulations of the country, and strictly review whether the goods they bring are problematic products, so as not to infringe the legitimate rights and interests of the masses.
Compliance Guidelines Normative Endorsement
Improve legislation and strengthen accountability
So, are there any restrictions on celebrity endorsements?
If there is a problem with the product it endorses, what responsibility should I take?
Ma Lihong analyzed that if a celebrity spokesperson publishes a false advertisement of a product or service that is related to the life and health of consumers, according to the Advertising Law, if damage is caused to consumers, the advertising operator, advertising publisher, and advertising spokesperson shall be jointly and severally liable with the advertiser. Responsibilities; if the celebrity endorses, knowing that the advertiser, advertising operator, or advertising publisher violates state regulations, uses advertisements to falsely promote goods or services and the circumstances are serious, or if the celebrity falsely promotes his own products with serious circumstances, it may be suspected of false The crime of advertising also entails criminal responsibility.
In fact, in order to regulate the endorsement of celebrity commercial advertisements, local market supervision departments have issued many relevant regulations in recent years.
For example, in November 2021, the Zhejiang Provincial Market Supervision Bureau formulated and issued the "Guidelines for the Compliance of Star Commercial Advertising Endorsements", which clarified the basic principles that star endorsement commercial advertisements should follow, and sorted out the qualifications, identity representation, and scope of celebrity commercial advertising endorsements. Restrictions, which refine the legal responsibilities and social obligations that must be fulfilled before celebrity endorsement of commercial advertisements, such as careful selection of endorsement objects, experience and use of endorsed products, verification of advertising content and format, follow-up and disposal after endorsement, civil liability, and active cooperation with supervision and supervision. Listed The red line of the restricted area that cannot be endorsed and the specific content that cannot appear in endorsement advertisements.
In February 2022, the Shanghai Municipal Bureau of Market Supervision formulated and issued the "Compliance Guidelines for Commercial Advertising Endorsement Activities". Natural persons, legal persons or other organizations that cannot act as commercial advertising spokespersons shall not use advertising spokespersons or some special subjects to advertise goods or services. , the orientation problems that should not appear in advertising endorsement activities, etc., listed 21 commercial advertising endorsement qualifications and a negative list of related advertising endorsement activities.
When talking about the relevant norms for celebrity endorsements or live broadcasts, Chen Haisong pointed out that at present, the accountability for celebrity endorsements is mainly aimed at false endorsements, that is, the spokesperson is required to be subjective and intentional.
The Advertising Law has relatively complete provisions on the administrative responsibilities of advertising spokespersons. In practice, this clause can also play its role in maintaining the order of the market economy.
"However, it is difficult to determine the civil liability of advertising spokespersons. Regarding the measurement standard of the spokesperson's subjective fault (knowingly or should have known it was false), the court usually takes the duty of care of ordinary people as the measurement standard of the duty of due diligence, rather than a higher standard. In practice, it is difficult to determine that the spokesperson knew or should have known that it was a false advertisement, so it is impossible to sentence the advertising spokesperson to bear joint and several liability for compensation." Chen Haisong suggested that relevant judicial interpretations should be issued to improve the measurement standard for the subjective fault of advertising spokespersons.
He also mentioned that the Criminal Law does not directly and clearly stipulate the criminal responsibility of advertising spokespersons, but it can be inferred from the civil and administrative responsibilities of advertising spokespersons that under certain circumstances, advertising spokespersons should also be responsible for false propaganda.
Taking into account the lag of legislation, under the premise of the revision of the Advertising Law, the future criminal law should clarify the criminal responsibility of advertising spokespersons.
"In line with the original legislative intention of protecting the legitimate rights and interests of consumers, regulating celebrity endorsement behavior and the order of the advertising market, we can learn from the legislative forms of some European and American countries to separate and unify legislation on the issue of advertising endorsements, refine the relevant provisions of the existing articles, and implement endorsement behavior. civil, administrative and even criminal legal liability." Chen Haisong suggested.
Zhen Jingshan made suggestions from the perspective of celebrities. Celebrities should pay attention to the following points when receiving advertising endorsements and bringing goods in the live broadcast room:
Sufficient background investigation should be carried out to ensure that the merchants to be cooperated have complete qualifications and licenses, that the endorsed products or services meet the quality standards, the logo is legal, and are legal and compliant products, and that the products and services that are endorsed or live broadcasted are not national laws. Products or services for which endorsement is prohibited by law;
After confirming the cooperation relationship, the contract should be well defined, the contract terms should be perfected as much as possible, the rights and obligations of both parties should be clarified, and the responsibilities and compensation scope should be clarified in the event of product quality problems or illegal problems;
Before endorsement or live broadcast, the star should personally try or experience the products and services that will be endorsed or brought, and keep relevant usage or experience records;
In the process of endorsement or live broadcast, celebrities should promote and recommend products or services based on the principle of seeking truth from facts, and must not falsely promote or exaggerate publicity to ensure that the functions, quality, specifications, ingredients, etc. claimed by the product or service are consistent with the actual Consistent.
"In addition, we must also pay attention to the review and confirmation of advertising slogans, live broadcast scripts, promotional materials and materials, and conduct compliance review before official use or release, to prevent the improper use of partners, and to reduce the risk of illegality as much as possible." Zhen Jingshan said.
For consumers, Ma Lihong suggested that they should maintain a rational attitude and not blindly believe because of celebrity endorsements. Especially when buying large-scale products, they must fully understand the performance, quality, qualification and reputation of the product before making a decision.
You should be more cautious about products that affect your health.
If there is a problem with the purchased product, you must actively protect your rights and make a claim.