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● why is it so common for online celebrities to sell fake goods during live streaming? if there are problems with the goods, what responsibilities should the online celebrities bear?

● when an influencer promotes a product, if he/she clearly states that he/she is “not the seller” and that “the seller of this product is the store operator to which the shopping link belongs, not this live broadcast room”, can he/she be exempted from the “refund one and compensate three” liability?

● the current laws are not clear enough about the new business model of live streaming sales. the identity of the anchor is blurred between the advertising spokesperson and the seller, making it difficult to divide the responsibilities.

● live streaming platforms should establish stricter internal punishment mechanisms. for those anchors who have a history of "failures", restrictions on traffic and promotion can be set.

● make top anchors the focus of supervision. introduce third-party quality assessment agencies to pre-screen the products promoted by top anchors.

□ our reporter zhao li

recently, a professional counterfeiter released a video saying that the fake original beef rolls sold by the internet celebrity "crazy xiao yangge" have been fined 500,000 yuan. coincidentally, the "make friends live room" with more than 20 million fans was also exposed to be involved in counterfeit problems. a "fendi casa mooncake souvenir" product sold by it was suspected of being counterfeit because of its brand association with the luxury brand fendi.

online shopping has become a part of many people's daily lives. many top anchors have "failed" to sell goods, which has attracted widespread attention from the society. people can't help but ask: why do online celebrities sell fake goods so frequently? what responsibilities should online celebrities bear when there are problems with the goods? are the penalties for them adequate? in the era of online shopping, how should the rights of consumers be protected?

many experts said in an interview with the legal daily that the anchor is the core element of live streaming sales, and his interests are closely related to the sales of the goods he carries. the anchors have been repeatedly exposed for selling fake goods, highlighting a series of problems in live streaming sales, such as the division of anchor responsibilities, legal lags, and difficult supervision. it is recommended to make the top anchors the focus of supervision, establish a more stringent punishment mechanism, introduce third-party quality assessment agencies, conduct pre-screening of the products carried by the top anchors, and improve the legal responsibilities and obligations of the anchors, platforms, merchants and other parties, and put the anchors who carry goods under the legal responsibility "tight ring".

it is common for internet celebrities to sell fake goods

legal responsibilities

the top anchor "crazy little yang" with over 100 million fans on the internet was accused of selling counterfeit goods in his live broadcast room. the basis for the professional counterfeiter to expose the sale of counterfeit goods in his live broadcast room is: on july 16, the market supervision and administration bureau of qingshan district, wuhan, hubei province, issued an "administrative penalty decision": the "xian duo yu" beef roll sold by "crazy little yang" for 89.9 yuan per 4 catties was determined to be not original cut beef, and "xian duo yu" was fined 500,000 yuan.

public data shows that the beef rolls sold in the live broadcast room of "crazy little yang brother" totaled more than 40,000 orders, with a total sales amount of more than 3.87 million yuan. "crazy little yang brother" repeatedly emphasized when promoting the beef rolls that he sold that they were "non-synthetic, non-water-injected, non-spliced, uncured, and free of additives," and put these labels in the names of the products he sold. many consumers placed orders for the "pure natural" product.

in fact, it is common for internet celebrities to be suspected of selling counterfeit goods.

at the end of august this year, a consumer revealed that he bought a silk quilt in a live broadcast room of an online celebrity with more than 7 million fans. the anchor promised that "the 4-jin silk quilt will not cost one or two hundred yuan, but only 79.9 yuan, just to beat this price." however, after receiving the product, the consumer found that the product had no certificate of conformity, manufacturer's address, or contact number. after sending it to a third-party service agency for testing, the fabric and filling were 100% polyester fiber. the consumer communicated with the customer service, and the other party only agreed to return the product and refund.

recently, the hexi district people's court of tianjin heard a case of selling counterfeit goods in an online live broadcast room. the anchor bought a variety of counterfeit brand cosmetics at low prices, and promoted them through live broadcasts on short video apps, selling them at a price significantly lower than the market price. the counterfeit cosmetics sold were worth more than 200,000 yuan. in the end, the anchor was sentenced to three years in prison, suspended for three years, and fined 250,000 yuan.

if an anchor “works hard” in a live broadcast room but the products he sells do not match the promotion or are even counterfeit or shoddy products, does he need to bear legal responsibility?

"there are no clear provisions in existing laws and regulations regarding copyright infringement issues of live streamers recommending products, and the advertising law also has difficulty in providing direct references for adjudication. in this regard, we can clarify the legal responsibilities of live streamers based on their specific status in live streaming." huang yinxu, associate professor at the law school of renmin university of china, divides it into three categories:

the first is the "endorsement-type" anchor. this type of anchor has a certain degree of fame and traffic, and uses its own popularity and attractiveness to promote the merchant's products. the legal relationship between the anchor and the merchant meets the characteristics of an "advertising endorsement" contractual relationship. at present, a large number of top anchors and performing stars are live-streaming and selling goods, which is a typical case of promoting products as spokespersons. their sales behavior is subject to the relevant provisions of the advertising law on advertising spokespersons. if it causes damage to consumers, they shall bear joint and several liability with the advertiser;

the second type is the "agent-type" anchor. this type of anchor usually opens a virtual online store, puts products on the shelves by themselves, and signs an agency agreement or cooperation agreement with the merchant. they decide on their own what content to promote and publish, and guide consumers to shop through their own influence and marketing capabilities, and finally obtain sales commissions from the merchant. during this period, although the anchor who brings goods does not actually obtain the ownership of the products they bring, their identity is not only an advertising spokesperson or advertiser, but also an "agent", and should be regarded as a direct seller of the product. the anchor should bear the legal responsibilities of the commodity seller in accordance with the provisions of the product quality law and the consumer rights protection law;

the third type is the "job-performing" anchor. this type of anchor is a staff member of the product merchant or is employed by the merchant. his live streaming and selling goods is a job behavior during work, and the working method is only transferred from "offline" to "online". therefore, consumer disputes caused by this type of anchor's selling goods fall into the scope of the legal relationship between the operator and the consumer, and the external legal liability is borne by the commodity operator.

"from the perspective of administrative responsibility, the live broadcast room or the anchor himself publishes false information and conducts false propaganda, which endangers the market economic order and constitutes unfair competition. according to the consumer protection law and relevant laws and regulations, their behavior can be punished from the perspective of administrative penalties." said su haopeng, professor at the school of law of the university of international business and economics.

the anchors have drawn a clear line

avoiding the responsibility of refunding one and paying three

the fake beef roll incident put the "three sheep" company and "crazy little brother yang" at the forefront of public opinion, and also exposed the fake problem of another product he had promoted before, namely the "caotou meat incident" of meicai kourou exposed by cctv's "3.15". the three companies involved had their production licenses revoked and were fined 12.87 million yuan. "crazy little brother yang" had promoted products for one of the companies.

lu wenqing, co-founder of "three sheep", once responded that the company had not received any punishment from any relevant department for the incident. "after the incident, before the results of the investigation came out, the company actively responded and made a refund, including but not limited to refunding one and compensating three."

on september 11, when the official account of "make friends live room" released a statement on the "fendi casa mooncakes", it also mentioned "refund one and compensate three", saying that the company had launched a special investigation and stopped selling related products, and at the same time provided "refund one and compensate three" to consumers who purchased the mooncakes in the live broadcast room.

according to the interviewed experts, the saying "refund one and compensate three" comes from the relevant provisions on punitive damages. the consumer rights protection law stipulates that if an operator provides goods or services with fraudulent behavior, it shall increase the compensation for the losses suffered by the consumer at the request of the consumer, and the amount of increased compensation shall be three times the price of the goods purchased by the consumer or the cost of receiving the service. if the amount of increased compensation is less than 500 yuan, it shall be 500 yuan.

so, if online influencers are suspected of fraud in promoting products, can consumers get “refund one and compensate three” in practice?

many consumers said during interviews that they bought counterfeit and shoddy goods in the live broadcast room, and they were lucky to be able to return the goods and get a refund, and it was impossible to "return one and get three times the compensation". a consumer in beijing said that after buying fake goods, he asked for "return one and get three times the compensation", and the customer service responded: the anchor was just promoting the goods, and the "return one and get three times the compensation" should be asked to the merchant.

the reporter's investigation found that in order to remove the legal responsibilities of "operators" that may be involved in the sale of goods, some live broadcast rooms, especially those of internet celebrities, played "word games" and marked "not the seller" and "the seller of this product is the store operator to which the shopping link belongs, not this live broadcast room" on the product page.

in this regard, wu di, a lawyer at beijing deheng law firm, analyzed that this practice shows that the anchors are trying to position themselves as advertising spokespersons for products rather than sellers in order to avoid broader responsibilities in the process of bringing goods. however, even so, the anchors' responsibilities are not limited to the advertising level. the top anchors are not only advertising spokespersons for products, but often act as actual sellers or marketers. in this case, the top anchors need to establish a sound risk management mechanism to evaluate and prevent potential problems of the products they promote. once the product "turns over", the anchor cannot sever the relationship with the supplier, but should take the initiative to assume the corresponding responsibilities and work with the platform and merchants to solve the problem and reduce consumer losses.

huang yinxu believes that adding notes such as "not a seller" cannot completely draw a clear line of responsibility between the anchor and the seller. in actual operation, the anchor's words, behavior, and promotional content may have an impact on consumers' purchasing decisions. therefore, if consumers' rights are damaged, the anchor may still be held accountable.

"in practice, after many top anchors' sales failures, most of them only bear joint liability for advertising endorsements, which makes it difficult to fundamentally curb the chaos of top anchors' sales failures. this is mainly because the current relevant laws and regulations are not clear and comprehensive enough in defining the responsibilities of anchors who sell goods, and often only hold anchors accountable from the perspective of advertising endorsements, while ignoring other roles and responsibilities they may assume in live streaming sales." huang yinxu said.

establish a stricter punishment mechanism

improve pre-screening assessment

"the host in the live broadcast room introduced it as 999 pure silver, but i paid for a re-inspection after purchase and the result turned out to be copper-nickel." "they said they were clearing out their inventory and selling all kinds of big-name sports shoes with prices as low as 29.9 yuan, but the goods i received didn't even have tags." "the host mentioned the name of a big-name perfume when selling goods in the live broadcast room, but when i bought it, it turned out to be 'fake at first glance'"... there are countless similar complaints on third-party complaint platforms.

in wu di's opinion, the problem of selling counterfeit goods during live streaming occurs frequently, especially the repeated "crashes" of top anchors in selling goods. the fundamental reason is that the current laws are not clear enough about this new business model of live streaming with goods, and the identity of the anchor is blurred between advertising spokesperson and seller, which makes it difficult to divide responsibilities; the huge traffic and sales effect of the top anchors make them occupy an important position in the business, and this profit-driven approach makes them unwilling to assume greater legal responsibilities; platform supervision is lagging, and most of the time, problems are dealt with only after they are exposed, and they fail to effectively supervise and restrain the behavior of top anchors from the root.

apologies, compensation, or even bans for a period of time, followed by a comeback? some netizens questioned: "is the cost of making mistakes too low for internet celebrities, especially some top anchors?"

"at present, the punishment of anchors by the platform is not strong enough." wu di believes that live streaming platforms should establish a stricter internal punishment mechanism. once the products sold by anchors have quality problems or false propaganda, the platform should take measures, such as removing the videos of the products involved, restricting their rights to sell goods, reducing traffic support, or even suspending their live streaming qualifications. this kind of punishment can not only reduce the recurrence of violations, but also enhance the anchors' sense of responsibility.

wu di said that for anchors with a history of "failures", the platform can set traffic and promotion restrictions and increase the review of the products they promote. at the same time, by introducing third-party quality assessment agencies, the products promoted by top anchors can be screened in advance to avoid and reduce the number of problematic products entering the market.

su haopeng believes that the regulatory authorities should adopt a hierarchical regulatory model and focus on supervising top anchors. for the illegal acts of top anchors, various penalties and restrictions should be taken, such as limiting traffic, banning broadcasts, and even "killing one to warn the rest".

huang yinxu suggested that relevant departments should speed up the formulation and improvement of laws and regulations for the live streaming industry, clarify the legal responsibilities and obligations of anchors, platforms, merchants and other parties, and provide clear law enforcement basis for regulatory authorities. it is necessary to tighten the legal responsibility "tight ring" for anchors who bring goods throughout the entire chain. through the setting of legal responsibilities throughout the entire chain, supervision of the entire process of live streaming should be strengthened, including product selection, live streaming content, after-sales service and other links, so as to effectively curb the chaos of "turnover" of live streaming.

"regarding the delineation of legal red lines, on the one hand, it is necessary to clarify the joint tort liability of advertising endorsements. if the anchor engages in false propaganda or exaggerates the effects of the product during the live broadcast of goods, which causes damage to the rights and interests of consumers, he or she should bear the joint tort liability of advertising endorsements in accordance with the law, and bear civil liabilities such as replacement, return, refund of goods and compensation for losses." huang yinxu said that this requires anchors to ensure the authenticity and accuracy of information when recommending products, and must not mislead consumers; ensure the quality and safety of the products, and be responsible to consumers to the end.

he further mentioned that it is necessary to promote the establishment of an industry association or organization for live streaming e-commerce, strengthen industry self-discipline management, formulate industry standards and norms, guide anchors and platforms to consciously abide by laws, regulations and industry norms, curb the chaos of top anchors "crashing" in live streaming e-commerce, further protect the legitimate rights and interests of consumers, and promote the healthy and orderly development of the live streaming e-commerce industry.