Planting grass, unpacking, trial, avoiding pits, red and black list ......"Watch the evaluation before buying" has become the consumption habit of many young people, and the evaluation** has quickly become the "traffic password" of social platforms, covering beauty, digital, food, clothing and other major fields.
Recently, the Suzhou Internet Court heard a dispute over the right to reputation arising from evaluation. An evaluation blogger did not buy or experience the goods of the blogger with goods, but published evaluation remarks in the evaluation **, claiming that "why is the big Internet celebrity selling goods so bottomless" and "do you know how many Chinese have been harmed by this kind of thing". *It also includes portraits of bloggers with goods, as well as negative comments such as insulting language. The court ruled that the infringement was infringed and required the two defendants to publicly apologize and compensate for economic losses.
Not purchased for negative reviews.
The plaintiff, Yu Moumou, is a big V engaged in self-leading and e-commerce live broadcasts, with more than 3,000 fans on the whole network. From May to August 2023, a review blogger with more than 30 followers, "A Mattress Talks About Sleep", released a series of evaluations of latex mattresses, latex pillows and other products promoted by Yu Moumou in the live broadcast**.
Among them, on May 4, 2023, "A Mattress Talks About Sleep" released a work with a description of "Please continue to bring value to your fans, instead of selling junk latex!" The ** of "latex dust hazards" not only uses Yu so-and-so's **, but also contains "how tens of millions of fans of Internet celebrities eat inside and out", "do you know how many Chinese this kind of thing harms", "sell garbage, bring garbage to consumers" and other content. On May 12 and August 6, 2023, the account successively posted "There are so many latex pillow products sold on the whole network, and ten Thailands can't make them", "Are big Internet celebrities so short of money, cut consumers' leeks'" and other content.
After the defendant's ** was released, not only did it receive more than 3,000 likes, more than 900 comments and shares, but negative comments such as "It's disgusting to look at", "This guy wants any money, black-hearted money, it's closed", "That guy has no bottom line" and other negative comments appeared in the comment area. After investigation, the evaluation account was operated by a mattress company in Suzhou, and its legal representative Jiang appeared and recorded.
The plaintiff filed a lawsuit with the Suzhou Internet Court, requesting that the defendant be ordered to immediately stop fabricating, disseminating, and publishing relevant insulting and defamatory information about the plaintiff, **, and other acts that infringe on the plaintiff's right to reputation, and publish an apology letter and apology in a prominent position in a newspaper with national circulation and on the defendant's ** account, and at the same time request the court to order the defendant to compensate the plaintiff for economic losses of 100,000 yuan.
Yu Moumou believed in the trial that there was no authoritative evidence to prove that latex products were junk products, and Jiang and the company did not have corresponding experimental data to prove the harm of latex, let alone evidence and regulations prohibiting the sale of latex products by the state. Jiang and the company fabricated and distorted the facts and used insulting words, and the above-mentioned acts have constituted an infringement of their right to reputation and portraiture.
Jiang and the company argued that they were not subjectively at fault, arguing that the plaintiff publicly published the promotion**, and the defendant made an evaluation after seeing it, which conformed to the communication law of the current Internet era and could not prove the existence of subjective malice. At the same time, it was argued that although no special experiments were done to prove it, a lot of dust was generated in the process of disassembling the latex mattress, and consumers who had used latex mattresses suspected that rhinitis and ** disease were caused by the mattress. The remarks made by him are considered to be lawful acts of supervision in the public interest.
Evaluations should be factual.
The court held that the Civil Code stipulates that if the actor carries out news reporting, supervision and other acts for the public interest, affecting the reputation of others, he shall not bear civil liability, but shall follow the premise of reasonable limits and truthfulness, otherwise he shall bear tort liability in accordance with the law. This clause provides an exemption basis for the original defendant and other practitioners in this case to carry out supervision based on the public interest, but the remarks they publish should be based on the premise of objectivity, fairness, and seeking truth from facts.
The Court also held that public figures have a higher duty of tolerance. Based on the principle of priority of public interests, in order to protect citizens' right to know and supervision, safeguard the public interest, and ensure that citizens enjoy full freedom of speech in debates involving public affairs, public figures should have a certain tolerance measure for criticism and accusations against others, which is the tolerance obligation for the protection of public figures' personality rights. The plaintiff is a well-known blogger with tens of millions of followers and is a public figure with a certain degree of popularity and influence, so his corresponding personality rights are restricted in terms of accepting social supervision and satisfying the public's right to know, and he has a higher obligation to tolerate.
In the judgment, the court pointed out that in this case, Jiang made negative comments such as "garbage" on the latex mattresses sold by XX in his release**, which were not based on his own evaluation or experience, and lacked the necessary investigation of the content that might cause controversy, and failed to fulfill his duty of prudent care. Among them, remarks such as "garbage bloggers" and "no bottom line" have the intention of damaging reputation, and there are obvious faults, which objectively reduce Yu XX's social evaluation, and constitute an infringement of reputation rights. At the same time, Jiang's unauthorized use of XX's portrait in ** constitutes an infringement of portrait rights, and he should also bear corresponding infringement liability.
The court held that a mattress company in Suzhou was the operator of the evaluation account involved in the case, and Jiang was the person who appeared in the case, and the two defendants directly participated in the release of the ** involved in the case, which constituted joint infringement and should bear joint and several liability. In this case, the accounts operated by the plaintiff and the defendant all had a large number of followers, and the defendant claimed that the three articles it published involved ** supervision for the public interest, but the ** content exceeded the reasonable limits that should be followed in the implementation of ** supervision, and the number of likes, comments, and shares after publication was large, and the spread was wide, resulting in more negative comments against the plaintiff.
Based on the popularity of the parties, the degree of subjective fault of the two defendants, the extent, scope and consequences of the infringement, the court ruled that Jiang and the company should immediately stop the infringement, publicly apologize and compensate Yu for economic losses230,000 yuan.
Scientific, transparent and open evaluation.
Evaluation bloggers should explain the performance, quality, and pros and cons of products to consumers through testing, comparison, and experience of products, and provide consumers with reasonable and objective consumption guidelines. However, driven by the "traffic password", it is not uncommon for some evaluation bloggers to publish evaluations that are inconsistent with the facts, exaggerated, or deliberately derogatory in order to attract traffic or promote cooperation with goods, which has caused many disputes.
After the judgment of this case, the judge put forward three suggestions for the evaluation bloggers: first, when the evaluation bloggers publish the evaluation content, they should take the real use as the premise, and the evaluation method should be scientific, transparent and open, and give feedback on their objective and neutral use experience, so as to avoid making things out of nothing, exaggerating, deliberately derogatory or even insulting expressions and evaluations; Second, if there are commercial promotion behaviors such as bringing goods and advertising, the evaluation blogger should also make it clear through the evaluation content, top evaluation, etc., to avoid cutting fans "leeks" in the name of evaluation, which will affect the goodwill of themselves and the promoted products; Third, if the content of the assessment coincides with the "track" of its own or affiliated enterprises' business operations, in the horizontal evaluation of similar products, it should avoid adopting a direct comparison method that one-sidedly highlights its own advantages and spreads the disadvantages of competitors, so as to highlight the competitive advantages of its own products and avoid falling into the legal whirlpool of unfair competition.