Who is responsible for problems with virtual idol endorsement products?
Lawyers analyze the legal issues of virtual anchors and virtual idols
□ Our reporter Han Dandong
□ Our intern Fan Xiaoya
A large number of virtual anchors and virtual idols started live broadcasts and brought goods; the top virtual anchors earned millions of yuan in 2.5 hours of live broadcast; more than 40 virtual anchors were refunded because the reward party was a minor; "(referring to the person who manipulates the virtual anchor for live broadcast) to withdraw and fall into the turmoil of termination... Recently, virtual anchors and virtual idols have repeatedly become the focus of social attention.
According to statistics from the largest domestic second-dimensional platform, the number of virtual anchors who settled in before August last year exceeded 36,000.
As more and more virtual anchors and virtual idols come to the stage and participate in various economic activities, many legal issues have also arisen.
How to divide the responsibilities of virtual anchors and virtual idol endorsements?
Do I need to pay taxes after being tipped?
What kind of legal responsibility does the "Zhongzhiren" have to bear when withdrawing?
With these questions in mind, the "Rules of Law Daily" reporter recently interviewed a number of lawyers.
Virtual anchor for advertising endorsement
The operator must bear legal responsibility
At present, many virtual anchors and virtual idols have carried out activities such as brand endorsements and live broadcasts.
According to statistics, during this year's "618" shopping festival alone, more than 30 brands chose virtual idols or virtual anchors for event marketing and live streaming, etc., involving electronic technology, fashion, beauty, culture and entertainment and many other fields. Add new impetus.
So, what is the legal difference between virtual anchors and virtual idols as advertising spokespersons and real-life endorsements, and how can they be held responsible for product problems?
Qiao Mu, director of the Legal Committee on Digital Economy and Compliance Governance of Beijing Huixiang Law Firm, said that since the virtual anchors themselves do not have legal personality, in many cases the legal responsibility cannot be borne by the virtual anchors, but by the operators behind them. bear.
If the operating entity adopts the method of outsourcing anchors, the technical service company may also bear certain legal liabilities.
"As for real-person endorsements, my country's Advertising Law clearly stipulates that when an advertising spokesperson recommends or certifies goods and services in an advertisement, it shall be based on facts, in line with the provisions of this Law and relevant laws and administrative regulations, and shall not be used for unused goods or services. Unaccepted services are recommended and certified. However, due to the virtual nature, virtual people cannot use the goods, and naturally they cannot perform relevant responsibilities in accordance with the provisions of the Advertising Law." Qiao Mu said.
According to Wang Zhenhua, a partner of Tahota (Shanghai) Law Firm, virtual anchors are not the subject of advertising endorsements under the Advertising Law. According to the Advertising Law, advertising spokespersons refer to people other than advertisers who use their own name or image in advertisements to target commodities, The natural person, legal person or other organization whose service is recommended or certified.
Therefore, the main identity of the spokesperson is a natural person, legal person or other organization.
"Virtual anchors should also abide by the "Interim Measures for the Administration of Internet Advertising" when advertising endorsements. The actual operator of the virtual anchor, as the advertisement publisher, should be directly responsible for the content of the advertisement." Wang Zhenhua reminded that the brand should be required when signing a virtual anchor. The operator shall provide proof of intellectual property rights, including but not limited to patent rights, trademark rights, blockchain and other relevant authorization documents.
Being endorsed by a virtual anchor also involves the existence of the main body, so it is necessary to judge the risk of its continuous operation.
Set up a reasonable profit distribution mechanism
Clarify the rights and obligations of "people in the middle"
In May of this year, the virtual idol who claimed to "never stop broadcasting, never collapse the house" fell into a turmoil, and the virtual girl group A-Soul, regarded as the "domestic virtual idol ceiling", because of Jiale's "people in the middle" The company announced that "Jiale" has entered "live dormancy".
It is understood that since the virtual idols relying on real actions and language are highly bound to their "people in the middle", once the "people in the middle" quit, the virtual idols often cannot continue to broadcast live.
In this contract termination turmoil, some fans could not accept the withdrawal of their beloved idols. By reading the dynamics of the personal account of "Zhongzhiren", the high-intensity work and low income of "Zhongzhiren" were exposed.
While questioning the virtual idol operator, the legal relationship between "Zhongzhiren" and the operator, and whether "Zhongzhiren" should take legal responsibility for quitting, have also become hot topics for fans to discuss.
Xing Zhifan, a partner of Beijing DHH (Shanghai) Law Firm, analyzed that if the two parties are in a service or other comprehensive legal relationship, the actor and the company are equal subjects of contractual legal relationship. If the contract makes a claim against the other party, if there is no agreement in the contract, the claim can be made in accordance with the relevant laws and regulations.
Wang Zhenhua said that if there is a labor relationship between "Zhongzhiren" and the operator, they can be regarded as ordinary workers, and they can sue the operator based on disputes arising from labor hours, work intensity, and working environment.
With the rise of the commercial value of virtual anchors, it is reasonable to upgrade the personal income of "Zhongzhiren".
When the scale of revenue involved in the operation of virtual idols is relatively large, in view of the contribution and impact of the "people in the middle" on the revenue, it is recommended that both parties sign a cooperation agreement as equal subjects.
"The operator needs to clearly stipulate the rights and obligations between the company and the 'people in China' through a detailed and professional agreement, and set up a reasonable profit distribution mechanism, as well as assume basic labor security responsibilities in accordance with the law, and carry out fair and just cooperation." Qiao Mu said that while the operator establishes a negative feedback mechanism for dishonest or irresponsible employees, it must also examine itself and avoid excessive pressure on employees. Responsibilities, etc., cannot force it to "cooperate with the performance" in front of the screen.
Virtual anchors should pay taxes according to law
Follow live streamer code of conduct
In February this year, the image of a virtual anchor of Station B E-sports was accused of plagiarizing the facial image of another virtual anchor.
Finally, the artist responsible for the image design issued an apology, admitting that he "excessively borrowed" the eye part of his face, and expressed his willingness to take responsibility.
In this regard, station B punished the person in charge of the virtual anchor artist agency department and other relevant personnel.
In May of this year, a virtual anchor released a video "About the fact that I disappeared for half a year but was actually abducted and trafficked", which sparked widespread discussion.
Afterwards, the association to which the virtual anchor belongs issued a rumor-refuting statement saying, "After verification by the police, the content is not true."
His account was also permanently banned by the platform.
At present, legal issues involving virtual anchors and virtual idols are emerging more and more.
Wang Zhenhua believes that the operator is the manufacturer and operator of the virtual anchor. Under normal circumstances, if the virtual anchor violates the law, the operator will bear legal responsibility as the first responsible person.
If "Zhongzhiren" publishes illegal information in the name of the anchor, the operator can "Zhongzhiren" violate the non-disclosure agreement and require "Zhongzhiren" to compensate for the loss of the virtual anchor's commercial value; but the operator also needs to bear the responsibility Relevant rectification, apology, administrative punishment and other legal responsibilities.
"Platforms that provide live broadcast services for virtual anchors also have corresponding responsibilities. According to the "Opinions on Further Regulating the Profitable Behaviors of Online Live Broadcasting and Promoting the Healthy Development of the Industry" issued in March this year, the live broadcast platforms manage account registration, hierarchical management, and standardize online live broadcast marketing. Maintain market order, standardize tax management, and promote tax compliance to implement the main responsibility of management." Wang Zhenhua said.
Qiao Mu said that the "Code of Conduct for Online Anchors" jointly issued by the State Administration of Radio and Television and the Ministry of Culture and Tourism on June 22 this year established that virtual anchors and virtual content should also follow the rules of the code of conduct for live anchors, especially for online anchors. Some hosts and content on the platform have weak legal awareness, distorted values, spread false information, induce irrational consumption and other violations of laws and regulations, and virtual hosts and the operators behind them should bear corresponding legal responsibilities.
Referring to the taxation of virtual anchors, Wang Zhenhua said that the "Code of Conduct for Internet Anchors" has clearly included it in the list of supervision, and virtual anchors should pay taxes according to law.
Since the overseas anchors benefit from the platform located in China, according to the principle of territorial jurisdiction, they should also pay taxes in China according to the law when they obtain income on the platform in China.
It is worth noting that since the virtual anchor is not a civil legal subject, the income obtained by the virtual anchor is usually taxed by the operating company according to the income type according to the tax regulations.