From spokesperson to referral officer, experience officer from recording recommended video to live streaming

  How to determine the responsibility of the celebrity's recommended product

  □ Our reporter Zhao Li

  □ Qin Huamin, our intern

  On July 24, Yang Di, a well-known artist, posted an explanation on the alleged fraud of two online loan apps that helped to record a promotional video in 2017, and apologized to the victimized netizens.

  Yang Di said that after learning about this incident, he and his colleagues collected and understood the situation, “will definitely assist the users who were deceived in this incident to investigate to the end!” He apologized to the audience who suffered losses due to the video recommendation, and finally shouted this. Two apps give an explanation to netizens.

  However, it seems that the deceived netizens did not buy into Yang Di's statement.

  Recently, some netizens shouted on Yang Di’s Weibo: It’s okay to help Youyou.com record promotional videos, but have you strictly fulfilled the obligations clearly defined by the Advertising Law and other relevant regulations, and the legal compliance of the platform’s qualifications and business Has the authenticity been verified?

  Behind these disputes is the issue of identification and responsibility determination of celebrities when recording recommended videos. A reporter from the Rule of Law Daily conducted an interview.

 Recommended videos are subject to advertising law

  Can't change words to avoid responsibility

  According to Li Junhui, a special researcher of the Intellectual Property Research Center of China University of Political Science and Law, the endorsement responsibilities of celebrities and other advertising spokespersons mainly include not providing recommendations or certifications for products or services without factual basis; not for unused products or unaccepted products. Service recommendation and certification; endorsement advertisements that are judged to constitute false advertisements, under certain circumstances, shall be jointly and severally liable for the losses caused to consumers.

  In Li Junhui's view, as long as the non-spokesperson identity videos recorded by celebrities for enterprises, as long as the content of the video proves or recommends the products or services of related enterprises, they should be regarded as advertising spokespersons and bear corresponding endorsement responsibilities. Among them, if a similar video recorded by a celebrity does not charge a substitution fee, or is participating in a specific TV program, according to the requirements of the program group, read the corresponding advertising content in the program according to the script. In this case, the advertising endorsement responsibility Should be borne by the corresponding producer (program production) or publisher (content broadcasting unit).

  Regarding the legal responsibility of celebrities for recording promotional videos, Zheng Ning, director of the Law Department of the School of Cultural Industry Management of Communication University of China, explained to the reporter of Rule of Law Daily that celebrities recording promotional videos for enterprises as non-spokespersons may be identified as two under the current law. Kind of identity and bear different legal responsibilities:

  One is the identity of advertising performers. When a business entrusts a celebrity to record a video to promote its own products, in the advertising law, its publicity behavior is similar to the labor behavior of performing in the promotion of the product, so the legal status of the celebrity may be defined as an advertising performer. According to the typical cases involving "medical advertising performers" announced by the State Administration for Market Regulation, when a product has a problem, the advertising performer usually does not bear legal responsibility, and the relevant responsibility should be borne by the advertising publisher or advertiser.

  The second is the identity of the advertising spokesperson. According to the standards put forward by the Advertising Association, the advertising spokesperson must be a person with independent personality other than the advertisers appearing in the advertisement, and a person who recommends a product in his own image or name, that is, for the product or product promoted by the advertisement. As far as the service audience is concerned, those who are relatively well-known and whose identity can be identified through their image are spokespersons.

  "From a legal perspective, when a celebrity records a promotional video for a company, it is more for the purpose of establishing a corporate image and achieving an eye-catching effect, but in essence, it still cannot change the identity of its advertising spokesperson. The endorsement advertisement bears the corresponding legal responsibility, and the legal responsibility cannot be evaded by changing the language." Zheng Ning said.

  At the same time, Li Junhui believes that for celebrity endorsements or the promotion of financial products, on the one hand, it is necessary to identify whether celebrities’ endorsements violate the requirements of the advertising law in accordance with the requirements of the Advertising Law; on the other hand, due to the compliance issues of financial services, Celebrities should be more cautious in endorsing such products. Once the endorsed product is found to constitute a crime, if the celebrity does not know or ought to know, then consider allowing the celebrity to bear the corresponding endorsement fee to the damaged consumer within the range of the endorsement fee charged. Responsibility for compensation, "This is mainly based on the fact that celebrities should take greater care of their own reputation or reputation commercialization, so as to avoid malicious abuse of celebrity effects by criminals."

  Appearance of trick titles on live broadcast platforms

  Actual identity as an advertising spokesperson

  On July 29, the State Administration of Market Supervision issued the "Guiding Opinions on Strengthening the Supervision of Online Live Marketing Activities (Draft for Comment)", which clearly stated that if the live content constitutes a commercial advertisement, the anchor should perform the responsibilities and obligations of the spokesperson.

  Many netizens said bluntly-do celebrities still dare to live broadcast the goods?

  However, a reporter from the Rule of Law Daily found that in addition to product spokespersons and recording blessing videos, after the popularity of live streaming, a large number of roles such as "star recommendation officer" and "chief experience officer" appeared on various live broadcast platforms. That is, celebrities recommend products.

  "In order to circumvent relevant laws and regulations such as the Advertising Law and the E-commerce Law, companies and celebrities have deliberately avoided the five words'advertising spokesperson' and used titles such as'image ambassador' and'recommendation officer'. This approach is equivalent to hanging sheep. Selling dog meat is essentially an advertising spokesperson. As long as it involves promoting the business or enhancing the reputation of the business’s products and services, it can be considered an advertising endorsement. Celebrities can’t grab the dividends of fan traffic while leaving the product after problems Clear relationship." Liu Junhai, a professor at the School of Law of Renmin University of China, said in an interview with a reporter from the Rule of Law Daily.

  Zheng Ning said that Article 38 of the Advertising Law stipulates that when advertising spokespersons recommend and certify goods and services in advertisements, they shall be based on facts and comply with the provisions of this law and relevant laws and administrative regulations, and they shall not be used by them. Commodities or unaccepted services are recommended and certified.

  "In order to avoid legal risks, some companies use the status of'Celebrity Recommendation Officer' and'Chief Experience Officer' on live broadcast platforms to invite celebrities in disguise to endorse them. However, according to the standards proposed by the aforementioned Advertising Association, from a legal perspective Said that these so-called referral officers, experience officers, etc., in essence, still cannot change the identity of their advertising spokespersons, and they need to bear corresponding legal responsibilities for the advertisements they endorse." Zheng Ning said.

  However, Zheng Ning also pointed out that there is still a view that there are five types of legal subjects that stars may constitute: advertisers, advertising operators, advertising publishers, advertising spokespersons, and advertising performers. Combining the current business forms of stars participating in commercial live broadcasts, this view believes that according to all the subjects of the live broadcast account, it can be divided into two situations: the celebrity's own account for live broadcast activities and the live broadcast account of the brand side.

  "Because commercial live broadcast activities will involve the introduction of product features, prices, advertising pictures and online sales page links, etc., the identification of the legal subject of celebrity anchors requires specific analysis. If some celebrities live broadcast their own brands and online The situation of the store is taken into consideration, and the situation will be more complicated." Zheng Ning analyzed.

  In Zheng Ning’s view, when celebrities participate in commercial live broadcasts as advertisers, advertising operators and publishers, advertising spokespersons, product or service recommenders, etc., the most critical legal obligation is to ensure the authenticity of advertising content from their respective perspectives. With regard to sex and legality, there is an obligation of mutual inspection among various subjects, and thus a complete and compliant advertising industry chain is formed. There are also special review requirements and prohibitions for special types of advertising products and services. Once the operation is not compliant or causes damage to others, the advertising spokesperson, product or service recommender shall bear the corresponding tort liability and administrative liability; the advertiser, advertising operator and publisher may also bear criminal liability.

 Effectively regulate celebrity recommendation responsibilities

  Strengthen the investigation of false endorsements

  A reporter from the Rule of Law Daily found that the current cooperation model between celebrities and commercial brands mainly includes the same style of film and television variety shows, offline celebrity announcements, product endorsements and goods, street shooting and private service planting grass, etc., triggering the buying habits of different fans .

  According to industry insiders, the fan economy is IP and belonging consumption, which is more in line with the current consumer psychology of the "post-90s" and even "post-95s". Some celebrities endorse brands or participate in commercial activities to attract fans to consume. Merchants hope to bring goods. If they cooperate properly, celebrities and companies can achieve a win-win situation.

  Liu Junhai believes that in the era of celebrity economy or fan economy, it is necessary to effectively regulate the legal responsibilities of celebrities when recommending products, and not only focus on economic benefits and ignore social responsibilities. "It is necessary to bring the endorsements or advertising operations of celebrities, Internet celebrities, etc. into the track of the rule of law, not only to benefit the majority of consumers, but also to help create an Internet market ecological environment of honesty, fairness, and multi-win sharing. The sustainable and healthy development of the cargo industry is a good thing."

  Li Junhui suggested: First of all, celebrities should cherish their own reputation or credibility, and don’t easily endorse new products or services that are unclear or uncertain, and avoid being improperly used; secondly, as long as the celebrities implement the corresponding products or services The act of proving or recommending, even if the advertising spokesperson agreement is not signed, should be regarded as an advertising spokesperson and should bear the responsibility of the advertising spokesperson; third, increase the investigation, accountability, and punishment of celebrity endorsements, especially false endorsements, and form a right The powerful deterrence and punishment of celebrities’ false endorsements promote the construction of a legalized business environment and a consumer protection environment.

  "Although there is no case in China that substantively requires celebrities to bear legal responsibility, in view of the characteristics of financial products, in terms of the determination of the responsibility of advertising spokespersons, attention should be paid to examining whether the celebrities know that the advertising content is false. Qualifications, operating conditions, and product conditions are reviewed, and the provisions for personal use of advertising spokespersons in the Advertising Law are followed. If a celebrity spokesperson knows that the content of financial product advertisements is false but still speaks for it, he should be required to bear the necessary legal responsibility." Zheng Ning said.

  Zheng Ning also specifically mentioned the recommendation and promotion of financial products.

  "With the rapid development of financial technology, the increasingly complex financial risks, and the diversification of investor structures, China should introduce special management measures for the promotion of financial products or services as soon as possible. From an operational level, the supervisory authority can implement the filing of financial recommendations. Any promotion of financial services or products that has not been filed should be strictly prohibited. The scope of supervision includes but not limited to the promotion of traditional forms of advertising, Internet advertising, WeChat groups or QQ groups.” Zheng Ning said.

  At the same time, Zheng Ning suggested to establish a disciplinary mechanism to impose different forms of punishment on advertisements for financial services or product promotion that have not been released for the record, and for advertisers, advertising operators and other related entities. As for spokespersons, a blacklist system can be established to warn celebrities to be cautious in their endorsements, requiring them to balance economic and social benefits and assume necessary social responsibilities.