High imitation star accounts frequently show who will protect user rights
[Q&A Civil Code · Statement by Case]
●Keywords
High imitation account fraud
Name rights and portrait rights
●Overview
Currently, fake celebrity accounts are more common on short video platforms.
These accounts use the names of celebrities, their avatars are mostly photos of the celebrities themselves, and most of the content posted are images of these celebrities.
After attracting attention by copycats, these accounts may then deceive users' feelings, and may also defraud money through financial management, live broadcast and other methods.
●Case
A few days ago, Ms. Huang from Ganzhou, Jiangxi Province was deceived by the account of impersonating actor Jin Dong on a short video platform, causing widespread concern.
Ms. Huang said that "Jin Dong" had confessed to her through a short video and ran away from home for this.
It is understood that the two parties often interact on the platform. In addition to posting some small videos, the counterfeit account will also carry out live broadcasts with goods. Ms. Huang is fully involved every time.
●Law
If a party uses fraudulent means to cause the other party to carry out a civil legal act contrary to its true meaning, the fraudulent party has the right to request the people's court or arbitration institution to revoke it.
(Article 148)
No organization or individual may infringe the name rights or name rights of others by means of interference, misappropriation, or counterfeiting.
(Article 1014)
No organization or individual may infringe on the portrait rights of others by demonizing, defaceting, or using information technology to forge.
Without the consent of the right holder, the portrait of the right holder may not be produced, used, or published, unless otherwise provided by law.
(Article 1019)
If a network service provider knows or should know that a network user uses its network service to infringe the civil rights of others, and fails to take necessary measures, it shall bear joint and several liability with the network user.
(Article 1197)
●Experts
Zhang Li (Professor, School of Civil and Commercial Law, Southwest University of Political Science and Law)
Strengthen the regulation of moral and legal risks caused by high imitation star accounts
The proliferation of imitation celebrity accounts in short video platforms is inseparable from the mature industry chain of training, account maintenance, and account sales behind it.
Buying and selling short video accounts is a virtual property transaction.
Article 127 of the Civil Code of my country stipulates that if the law has provisions on the protection of data and network virtual property, follow those provisions.
However, there is currently no special law in my country to regulate the circulation of such virtual property.
Although short video operating platforms generally explicitly prohibit account trading and trading in their user agreements in practice, the development, trading, and use of high imitation celebrity accounts shown in cases are not uncommon, and the moral and legal risks they cause urgently require corresponding special regulations.
First, the high imitation celebrity account infringes the portrait rights and name rights of the imitation celebrity.
Portrait rights and name rights are personality rights enjoyed by natural persons, and no organization or individual may infringe.
The Civil Code stipulates that no organization or individual may fake the name of another person, and may not make, use, or publish the portrait of the portrait right holder without the consent of the portrait right holder.
In the case, users of high imitation celebrity accounts often fake celebrity names, or use celebrity photos without the celebrity’s consent, or even technically process celebrity’s portraits, with ambiguous language to attract traffic and live broadcast goods. And other purposes.
The above behavior directly infringes the celebrity’s right to name and portrait. If this behavior also reduces the celebrity’s social evaluation, it may also infringe its reputation.
Second, the owner of the star high imitation account has fraudulent behaviors against the public.
The purpose of such users is to make profit: for example, to obtain economic benefits through fake celebrities cheating for rewards or live broadcast of goods.
If its fans mistakenly believe that the other party is a real celebrity and give a reward, or if the high imitation account deliberately conceals the true situation of the product or informs the false product, the user has a wrong understanding of the product and buys it, then the fraudulent person can request the court Or the arbitration institution may revoke the related gift contract or sales contract and recover the payment.
Third, the responsibility of network service providers.
According to Article 1197 of the Civil Code, the short video platform knows or should know that the high imitation celebrity account has infringed the rights and interests of others, which is the key to judging that the two jointly bear the responsibility for the civil rights and interests of others.
Short video platforms generally provide platform users with technical services such as access, transmission, storage, instant messaging, and search.
Due to the huge amount of network information, the platform adopts the "safe harbor" rule, that is, the right holder notifies the platform to take necessary measures to remove related infringing videos and other content, so as to exempt the platform from infringement liability.
If the user’s infringement on the platform is sufficiently obvious and the platform has not taken the necessary measures to stop it, then it should bear joint liability with the user; if the platform is indeed unaware and has not taken measures to stop the infringement after being notified by the right holder, then the platform needs to take the right The enlarged part of the person’s loss shall be jointly and severally liable for the infringing user.
Through this high imitation celebrity account incident, we need to make it clear that, on the one hand, the Civil Code should strengthen the basic regulation of the rights and obligations involved in the use of online video accounts, and at the same time strengthen the supervision of online short video platforms. .
Based on the Civil Code, in line with the requirements of the "Online Short Video Content Review Standards Rules" and "Online Short Video Platform Management Regulations" and other online short video specifications, focus on monitoring account real-name authentication and uploading video content, and implement relevant regulatory measures.
The National Internet Information Office recently announced the "Regulations on the Management of Internet User Official Account Information Services (Revised Draft for Solicitation of Comments)."
It not only clarifies that the platform needs to bear the corresponding main responsibilities, but also makes clear requirements for the behavior of the official account production and operator, maliciously counterfeiting, counterfeiting or misappropriating organizations and others' public accounts to produce and publish information content and batch registration, hoarding or illegal transactions Behaviors such as buying and selling public accounts are illegal and illegal, which is conducive to further promoting the sound development of the short video industry.
(Interview by our reporter Jin Hao)