100000 fined for publishing false advertisements
2022-01-12
"Circle of friends marketing" needs to abide by discipline and law Not long ago, a decision on administrative punishment issued by the market supervision bureau of Songjiang District, Shanghai attracted public attention. According to the punishment decision, the sales director of a cosmetics company released the company's product publicity materials in his personal circle of friends, which claimed that the corresponding beauty products had the functions of light spots, anti-inflammatory, whitening and so on. After investigation, the product has no "light spot" and "bright white" effects. At the same time, the product is an ordinary cosmetic, not a drug or medical device, but uses the medical term "anti-inflammatory". The market supervision department believes that this behavior constitutes a false advertisement and imposes a fine of 100000 yuan on the company involved. This punishment decision also triggered a heated discussion on the legal responsibility of the public for the marketing behavior of the circle of friends and how to standardize it. With the rise of social platforms, most people's social contacts have changed from offline to online, and the "circle of friends" has gradually become an important place for interpersonal interaction. Some people who may not have frequent offline contacts become "Friends of praise" through frequent interaction in the circle of friends. Because the circle of friends has natural advantages in information release and information access, some people also use it to engage in various forms of commercial marketing activities. "Circle of friends marketing" is not illegal, but it does cause many new legal problems. In this case, the relevant advertisements issued by the sales director of the company involved obviously had problems such as false publicity. However, the issue of concern in this case also lies in whether the behavior of enterprise executives publishing corresponding advertising materials in their circle of friends belongs to the behavior of "publishing" false advertising in the legal sense. Considering that "publishing" often contains the connotation of being open to the unspecified public, it is very worth discussing whether publishing corresponding information in the circle of friends constitutes "publishing" in the legal sense. Some people believe that the "circle of friends" built on the social platform belongs to the personal private field. Because only after being approved to become each other's friends can you enter their circle of friends and see the content of the circle of friends. In addition, with the help of the classification function of the circle of friends, when publishing corresponding information, individuals can also set specific groups to be visible, and other people can't see relevant content even if they are friends. Therefore, advertising in the circle of friends should not be understood as "advertising" in the legal sense. This view needs to be divided into two. For most people, the circle of friends does have the characteristics of individual private space, but in real life, many people have taken the circle of friends as a unique channel and carrier for their marketing activities. In this case, we can't stick to the definition that the circle of friends belongs to personal private domain, but should understand it as a public space in a sense. Since it is a public space, the act of publishing product advertisements in it naturally constitutes the act of advertising, so it is also necessary to abide by the corresponding legal provisions. Once a false and illegal advertisement is published, it needs to bear the legal responsibility stipulated in the advertising law. So what criteria should be based on to judge the use of the circle of friends by relevant subjects, with obvious marketing behavior characteristics? An important fact of this case is that the main body of cosmetics advertising in the circle of friends is the sales director of the enterprise involved. As enterprise employees, especially executives, publish the product advertisements of the enterprises they work for in their own circle of friends. This special identity connection makes it a very solid foundation to determine that their behavior has marketing attributes and constitutes advertising behavior. Of course, it can not be universally recognized that the behavior of an enterprise employee publishing commodity information related to his own enterprise belongs to advertising. In this regard, it is also necessary to comprehensively consider the sustainability of relevant behaviors, the scale and composition of its circle of friends, and whether it obtains benefits from the marketing behavior. Generally speaking, the circle of friends on the social platform may belong to someone's private space, but it may also have the attribute of public space. Once the relevant subjects use the circle of friends to engage in marketing activities, they should strictly abide by relevant laws and regulations. To paraphrase a common saying, the circle of friends is not a place outside the law. In this regard, the e-commerce law also has corresponding provisions. Article 9 of the law stipulates that there is a type of e-commerce operator who uses other networks to engage in business activities. Other networks referred to here include social platforms. Although the social platform is not an e-commerce platform in the strict sense, it does not affect that some people will use the network services it provides (including the function of circle of friends and various functions of establishing communication groups) to engage in business activities. In this case, although the law will not generally prohibit such business behavior, the operator must abide by the relevant legal provisions, otherwise it will be subject to legal sanctions. For example, during the epidemic, criminals who used their circle of friends to sell unqualified masks were investigated for legal responsibility. The circle of friends provides infinite possibilities for all kinds of subjects to engage in various activities by using "contacts", but in any case, abiding by discipline and law is always the basic bottom line for everyone to carry out activities in the circle of friends. (author: Xue Jun, Professor of Law School of Peking University and director of e-commerce law research center of Peking University) (outlook new era)
Edit：Luo yu Responsible editor：Wang xiao jing
Source：Legal Daily
Special statement: if the pictures and texts reproduced or quoted on this site infringe your legitimate rights and interests, please contact this site, and this site will correct and delete them in time. For copyright issues and website cooperation, please contact through outlook new era email：lwxsd@liaowanghn.com
Recommended Reading Change it 
Home
