Marketing should not go beyond the legal red line - talked about Fu Yuanhui's expression package incident

On the third day of the Olympic Games, Fu Yuanhui, a 96-year-old swimmer, has become a walking expression pack. Her “power of the wild” has swept WeChat, Weibo and major online media. .

With a straightforward, pure, cheerful and savage character, the Brazilian Olympic 100-meter backstroke bronze medalist became the goddess of the screen. Netizens commented on her as “cute”, “real” and “meng”... For a time, all kinds of entertainment and ridiculous articles are full of WeChat platforms, which are also mixed with many companies or brands that borrow Dongfeng or raw hard sets. Marketing and commercial promotion, including a fabric trading platform, an early education institution, and the public number of a well-known real estate agency. The marketing articles quoted Fu Yuanhui's expression packs a lot, which was used as a publicity gimmick to attract public attention.

The author raises questions about this: Does the marketing behavior of companies using hot events and celebrity portraits violate the legal rules? Article 100 of the General Principles of the Civil Law stipulates that citizens have the right to portrait and may not use the portraits of citizens for the purpose of making profits without their consent. Therefore, when Fu Yuanhui's portrait is used for the promotion of products or services, such behavior is commercially viable and can be presumed to be profit-making, which has the possibility of infringement.

To take a step back, even if it is not for profit, there is still the possibility of infringement in the process of using the right to portrait. Unreasonable use may result in infringement, slander and other infringements. Therefore, whether the use of portraits constitutes infringement depends on its use and purpose. Take the media as an example. If the media uses citizen portraits for the purpose of disseminating information, as long as the portraits are used in a reasonable and non-malicious form, the public figures should have an obligation to tolerate them. Such acts do not constitute infringement.

It is not uncommon for companies to be keen to use celebrity portraits or hot events to create business value. In the era of traditional advertising, photos of many female stars, including Fan Bingbing, were abused in advertisements such as medical beauty and gynecology without authorization. With the popularity of WeChat, the marketing methods of enterprises have also undergone new changes. Many companies have begun to use the corporate WeChat public account to market, and the resulting disputes and legal events have also been reported. At the beginning of 2016, the news that Liu Xiang and Wu Sha announced their love affair was used by an agricultural technology company to promote the article on their own public number under the heading “When Liu Xiang met Wu Sha”. Wu Sha was informed of the incident and brought the company to court and demanded a claim for economic losses of 200,000.

In fact, WeChat has become the hardest hit area for infringement of celebrity portrait rights. The first reason is that WeChat is a flat, multi-functional media set that integrates social, entertainment, and business. The flat structure often causes several functional boundaries to be blurred. Whether it is entertainment or business, it is difficult to have a clear definition. The business behavior in WeChat is usually outside the boundaries. Secondly, frequent infringements are often accompanied by a weak legal awareness of business actors. Marketers do not respect the rights of citizens' portraits and other rights that follow. Although "ruling the country by law" has been implemented in China for many years, the "rule of law" still does not become a code of conduct for citizens instinct. In addition, the profit-seeking nature of business and the difficult and costly infringement incidents on the WeChat platform have also objectively exacerbated the occurrence of infringements.

In order to avoid further deterioration of the infringement situation and standardize the use of the WeChat platform in a timely manner, it is necessary to strengthen its legal quality from the perspective of WeChat users, and to create a more complete supervision system from the perspective of the platform. Although the emergence of WeChat greatly facilitates the user's cultural, entertainment and social life, it also gives rise to great commercial value, but such value should not be at the expense of breaking the law and infringing on the interests of others. Business practices on the WeChat platform need to be vigilant against the legal red rope.