Is it illegal to live broadcast the "outdoor chat style"

　　Yang Hui

　　"Outdoor chat-talking" webcasts have recently become popular on major online platforms. Most of these chat-talking live broadcasts record real-time reactions of passers-by in emergencies without the consent of the other party, and netizens also watch online at the same time.

In a live broadcast recently announced, an anchor spoke to seven or eight girls within 40 minutes of the broadcast.

Unlike indoor live broadcasting, outdoor live broadcasting attracts more traffic due to its real scenes and lively plots. Therefore, many web anchors gather in internet celebrity check-in locations, large supermarkets and even streets and alleys, advocating to take everyone to “go out” and walk the streets to experience life. Hundreds of states.

However, in order to enhance the effect of the live broadcast and attract popularity, some anchors conduct live chats with gimmicks such as "reaching up beauties" and "street blind dates".

So, is this kind of strike-up live broadcast without the consent of others illegal?

What are the possible consequences of infringement?

Consequence 1

Or responsible for infringement of personality rights

　　The media recently reported that a female blogger recounted her experience of being secretly photographed, saying that she met a man who approached him while shopping and wanted to add a WeChat friend with her, but was rejected.

Later, the man divided the video content of the conversation with him into two clips and posted them on his live broadcast account.

This kind of behavior of filming and recording the strike-up process and broadcasting it publicly on social media platforms without the consent of the person being filmed may be suspected of violating the law.

In addition, the shooting time and scene of the shoot-up live broadcast are suspected of infringing on personal information such as the whereabouts of the person being filmed.

The above actions may infringe the person’s personality rights. According to Article 990 of the Civil Code, personality rights are the rights of life, body, health, name, name, portrait, and reputation enjoyed by civil subjects. Rights, rights of honor, rights of privacy, etc.

　　Specifically, when the live broadcaster displays the face of another person as the main screen in the live broadcast room without the consent of the other person, it may infringe the portrait right of the person being photographed.

A portrait is a visual image reproduced through painting, photography, video and other forms of expression, through a certain material carrier, and centered on the human face. It is a reproduction of the true image and characteristics of a natural person and is inseparable from his personality. It is directly related to the personal dignity and social evaluation of natural persons, and it exists as the object of portrait rights.

According to the provisions of Article 1019 of the Civil Code, no organization or individual may make, use, or publish the portrait of the portrait right holder without the consent of the portrait right holder, unless otherwise provided by law.

"Other provisions of the law" here refer to the reasonable use of portraits of others as stipulated in Article 102 of the Civil Code, including the use of portrait rights for personal learning, art appreciation, classroom teaching or scientific research, within the necessary scope. Portraits that have been published; for the implementation of news reports, it is inevitable to make, use, and publish the portraits of the right holders; to perform their duties in accordance with the law, the state organs publish the portraits of the right holders within the necessary scope; to display a specific public environment, it is inevitable Locally produce, use, and publish the portrait of the right holder; other acts of making, using, and publicizing the portrait of the right holder in order to protect the public interest or the legitimate rights and interests of the right holder.

　　Live chatting is a kind of commercial activity. The anchor can get rewards through viewers' rewards and gifts, so it has a profitable nature.

Without the consent of others or without the knowledge of others, the live broadcaster accosts others and records the appearance of others in the live broadcast through live video recording. This is an act of using other people's portraits and may infringe on the right of portraits.

　　In addition, hit-and-match live broadcasts may also infringe on the privacy and personal information of others.

Article 1032 of the Civil Code stipulates that natural persons have the right to privacy.

No organization or individual may infringe the privacy rights of others by spying, harassing, divulging, disclosing, etc.

Privacy refers to the tranquility of the private life of a natural person and the private space, private activities, and private information that are unwilling to be known to others.

Privacy is characterized by "privacy", even if we are in a public place in the information age, this does not affect people's right to protect privacy.

Outdoor strike-up live broadcasts are generally carried out in public places such as shopping malls and scenic spots. This kind of social public places expose people to the attention of others, but this does not automatically make everything about themselves public because they are in public places.

Without the consent of others, the live broadcast method of hitting up with passers-by is precisely to disrupt the external order and internal psychological state of private life, make people uneasy, and may infringe on the privacy of others.

　　With the consent of others, in order to enhance the live broadcast effect, many anchors involved in the conversation involve private information that others do not want to be known. This kind of spying and leaking and disclosing the privacy of others in the live broadcast room may also be a tort.

　　In addition, in accordance with the provisions of Article 1034 of the Civil Code, the personal information of natural persons is protected by law.

Personal information is a variety of information recorded electronically or in other ways that can identify a specific natural person alone or in combination with other information, including the natural person's name, date of birth, ID number, biometric information, address, phone number, email address, health Information, whereabouts information, etc.

Usually, when the anchor strikes up a conversation, there is a real interaction between the photographer and the person being photographed, which will expose a specific space and place where the person is being photographed. It can be alone or with other information such as the person’s appearance, language, voice, etc. Combined with the identification of specific natural persons, the whereabouts of others can be exposed.

　　■Judge's Suggestion

　　How should we protect our legitimate rights and interests when the live chat infringes on the right of personality?

According to Article 995 of the Civil Code, if the right of personality is violated, the victim has the right to request the perpetrator to bear civil liability in accordance with the provisions of this law and other laws.

The victim’s right to stop the infringement, eliminate obstacles, eliminate danger, eliminate influence, restore reputation, and make an apology shall not apply to the statute of limitations.

　　Aftermath 2

　　Or be punished for endangering public order

　　In addition to the above-mentioned risks of infringement, the anchors deliberately chase, intercept, and harass others outdoors without adequate communication to strike up a conversation with others, which may cause quarrels with passers-by who are being hit on, thereby triggering social security incidents.

According to Article 26 of the Law on Public Security Administration Punishments, anyone who pursues or intercepts others to create troubles is to be detained for not less than 5 days but not more than 10 days, and may be fined not more than 500 yuan; if the circumstances are more serious, more than 10 days If detained under 15 days, a fine of less than 1,000 yuan may be concurrently imposed.

　　At the same time, in order to strike up a conversation successfully or have a more natural effect, sneak shots of live broadcasts are also more common.

According to Article 42 of my country’s Law on Public Security Administration Punishments, anyone who voyeuristically, secretly photographs, eavesdrops, or spreads the privacy of others shall be detained for less than 5 days or a fine of less than 500 yuan; if the circumstances are more serious, detained for more than 5 days but not more than 10 days. A fine of less than 500 yuan can be imposed.

Syncing the pictures of the secret shots to social networking platforms in real time for online users to watch, comment and forward, is also suspected of taking secret shots or spreading the privacy of others, which is a violation of law and order.

　　In 2019, there was an incident in which an anchor was detained for provoking trouble after harassing passersby.

According to reports, the female anchor saw an uncle in his seventies who went to the market to buy vegetables and immediately rushed over and hooked the uncle's head with her hand to make a "strong kiss."

After getting rid of the entanglement, the uncle called the police immediately.

It turned out that this female anchor was just trying to attract attention and tried to attract fans by "harassing" passersby.

In the end, she was sentenced to administrative detention for 8 days by the Public Security Bureau for provoking troubles.

　　■Judge's Suggestion

　　People can choose to report to the police as soon as possible when they are intercepted, harassed or secretly filmed when they encounter hitch-and-talk live broadcasts.

　　Consequence 3

　　Cause conflicts to escalate or cause injury cases

　　When encountering an outdoor hitch-up live broadcast, the person who was filmed has the right to refuse; if he has been filmed into the live broadcast without knowing it, he also has the right to request a pause and delete the relevant live broadcast record.

However, some anchors ignore the personal wishes of the person being filmed, and force live broadcasts and strike up conversations with each other until conflicts arise between the two parties and the conflicts escalate, which may eventually produce other serious consequences.

　　In January 2018, Ma approached a female employee Tian during a live broadcast at the mall. He asked: "Beauty, I am the anchor of a certain platform, can I chat with the beautiful girl?" Tian clearly refused and let her leave, Ma After hearing this, he said to the mobile phone live video: "Old irons, I have been broadcasting for a year, and this is the first time I have met such a girl." Later, Tian asked Ma not to shoot and delete the video, but was refused. .

Tian wanted to use Ma's mobile phone to delete the video. In the process of fighting for the mobile phone, Tian was pushed to the ground and injured. He was diagnosed with a dislocation of the left shoulder joint and threatened miscarriage by the hospital.

The two parties failed to mediate, and Tian sued Ma to the court for compensation.

After the trial, the court held that the life and health rights of citizens are protected by law.

In this case, Ma was filmed during the live broadcast without Tian’s consent, which caused a dispute. Tian was injured during the dispute. The court finally ruled Ma to be liable for infringement damages and pay Tian to pay 11,000 yuan for personal damages.

　　■Judge's Suggestion

　　The host should respect the individual's wishes of the person being filmed and obtain the consent of the other party in advance when meeting strangers in the outdoor live broadcast.

When the person being filmed believes that their legitimate rights and interests have been infringed, they can choose a reasonable way to defend their rights, and must not use force to resolve the conflict that will escalate the conflict between the two parties and cause harm.

　　Aftermath 4

　　Platform defaults or constitutes joint infringement

　　As a live broadcast service provider, the live broadcast platform has standardized management and reasonable care obligations for web live performances.

The "Administrative Measures for Network Performance Business Activities", "Regulations on the Management of Internet Live Broadcasting Services", "Notice on Strengthening the Management of Network Performances", "Notice on Strengthening the Management of Network Live Services" and other documents stipulate the above-mentioned management and duty of care.

Among them, Article 7 of the Regulations on the Administration of Internet Live Broadcasting clarifies that the Internet live broadcast service provider, that is, the web live broadcast platform, shall implement the main responsibilities, be equipped with professionals commensurate with the scale of the service, and improve information review, information security management, on-duty inspections, and emergency response. Disposal, technical support and other systems.

For live broadcast content that violates the service agreement, according to Article 14 of the "Internet Live Broadcasting Service Management Regulations", the live broadcast platform shall deal with Internet live broadcast service users that violate laws, regulations and service agreements, that is, live broadcast publishers and users, as appropriate. Disposal measures such as warnings, suspension of publication, and account closure, promptly eliminate illegal and illegal live broadcast information content, save records and report to relevant competent authorities.

　　In reality, driven by traffic, some live broadcast platforms do not strictly implement the above-mentioned management regulations on bad content in outdoor strike-up live broadcasts and short videos.

Some live broadcast platforms have a separate category of "outdoor chat", and even set up search keywords such as "street sex with girls", "outdoor sex with girls" and other search keywords to attract users to watch.

　　The responsibility of the live broadcast platform is directly related to the management responsibility and the duty of care for the anchor. If the live broadcast platform does not fulfill the main responsibilities such as specification, review, and deletion, it may bear direct infringement or joint infringement liability due to the infringement of live content.

According to Article 1197 of the Civil Code, if a network service provider knows or should know that a network user uses its network service to infringe the civil rights and interests of others, and fails to take necessary measures, it shall bear joint and several liability with the network user.

　　If we are hit up on the street suddenly, we must be more vigilant when we are surprised, because the whole process may be secretly filmed or broadcast live, which becomes a profit-making tool.

Outdoor anchors should improve their ideological and ethical standards and network literacy, enhance their professional skills, improve the quality of live broadcast content, promote a healthy and progressive live broadcast atmosphere, live broadcasts in accordance with laws and regulations, and do not play side-by-side laws.

Live broadcast platforms should also actively fulfill their social responsibilities, strengthen the review of outdoor strike-up live broadcasts and short videos, clean up vulgar and illegal content, close relevant anchor accounts, make blacklists, and strictly implement relevant laws and regulations on webcasting and industry management regulations.

　　■Judge's Suggestion

　　The live broadcast platform should consolidate the main responsibility, strengthen the supervision of the live broadcast content, and promote a healthy and upward live broadcast atmosphere.

For vulgar live broadcasts whose main content is hitting up, major platforms should carry out special governance activities and resolutely resist.

(Author's unit: People's Court of Shijingshan District, Beijing)