Live broadcast with goods has sprung up and become a major shopping channel for consumers. However, the anchor is crazy "fudge", the marketing "routines" are diverse, and even problems such as counterfeit goods rampant and difficult refund have become problems. "Double 12" is approaching, and the judges of Haidian Court combined with typical cases to broadcast live shopping to avoid pits and defend rights for consumers.
case
The gold necklace became a "golden thread"
"Three gold necklaces, ready, welfare 1000 single, 18-inch chain, original price 13 thousand, anywhere 13 thousand, limited to one single per person" "Today, not in 9999, not in 6999, not in 3999, get on the bus in 1999! Come to the bottom! " … …
In the live broadcast room of a jewelry store, the anchor’s "words" attracted many onlookers, including Ms. Wang. The anchor with the goods is showing a gold necklace and claiming that it is the "bargain-hunting" price for the whole year. On the spur of the moment, Ms. Wang felt that the price was over-valued. She immediately clicked the "spike" button and paid the full amount at 9 o’clock that night.
Soon, Ms. Wang received a gold necklace with the label of "all-gold phoenix tail chain". When she opened the package, she was blindsided — — This is not a gold necklace. The chain is as thin as silk thread. The inspection certificate of precious metal products is attached to the package, indicating: main gold (Au), pure gold, with a total mass of 2.48g.
Ms. Wang suddenly felt cheated. "I really didn’t ask about the weight of the necklace before I bought it, because the anchor always emphasized ‘ There are not many goods ’ I am afraid that I can’t buy it before I quickly place an order. " Ms. Wang said that she estimated the weight of the necklace before deciding to buy it according to the anchor’s statement of "original price of 13 thousand" and the average market price of gold ornaments.
Ms. Wang believes that the weight of the gold necklace received is only 2.48g g. Obviously, the jewelry store and the anchor falsely reported the original price, which constituted fraud to consumers.
Ms. Wang sued for a refund and triple compensation. The court decision supported her claim.
Judge’s statement
The anchor is responsible for "opening his mouth"
Different from shopping on e-commerce platform, a major feature of live broadcast with goods is the "marketing skill" of the anchor, which some people call "network shouting". The value, price and quality of goods are all introduced by the anchor’s mouth. In most cases, the goods described by the anchor are provided by merchants such as sellers.
In the above-mentioned case, the court found that the anchor of the jewelry store on the live broadcast platform is the employee of the store, so the legal consequences caused by the anchor’s statement during the live broadcast should be borne by the jewelry store.
The judge pointed out that the biggest controversy in this case lies in the original price of the gold necklace stated by the anchor. According to the definitions of "original price" and "fictitious original price" in the Notice of the National Development and Reform Commission on the Interpretation of the Provisions on Prohibiting Price Fraud, "original price" refers to the lowest transaction price with trading bills that the operator has made in this trading place within seven days before this promotion; If there is no transaction within the first seven days, the last transaction price before this promotion is the original price; "Fictitious original price" means that the original price marked by the operator in the promotion activities is false and fabricated, and it does not exist or has never had a transaction record.
During the trial, the jewelry store did not submit evidence to prove that the gold necklace involved in the case had the "original price" in its online store, so it had to bear the adverse consequences of failing to provide evidence, and the court therefore decided that the "original price of 13,000" was not true and constituted fraud.
At the same time, the judge pointed out that if the false delivery of goods or services related to consumers’ life and health causes damage to consumers, if the anchor is an independent individual, not an employee of the merchant, such as the merchant inviting stars to bring goods, celebrities to bring goods, etc., then the spokesperson should be responsible for the legal consequences caused by the contents of his display and oral statement during the live broadcast. If there is a problem with the goods, consumers can sue the merchants and anchors for rights protection, and the merchants and anchors bear joint and several liability.
case
The trial found that the phone was not good and the return was rejected.
Xiao Li is a college student. He wants to buy a mobile phone with good camera function and smooth mobile games with a low budget. After browsing several mobile phone e-commerce, he is always hesitant. One day, when he watched a live broadcast of an anchor, the anchor was promoting a certain brand of mobile phone. The price, performance and appearance all met Xiao Li’s expectations, so he placed an order to buy it.
After receiving the mobile phone, Xiao Li tried it for two days. It didn’t feel as good as the anchor said, so she wanted to return it and buy other brands of mobile phones. However, when negotiating with the merchant to return the goods, Xiao Li was rejected on the grounds that there was a prompt on the website that the goods that had been activated or depreciated in a large amount were not applicable for 7 days and there was no reason to return them.
Repeated returns failed, and Xiao Li filed a lawsuit.
Judge’s statement
7 days no reason to return regardless of platform.
According to the judge, the Consumer Protection Law provides for goods that are not returned without reason. In short, two conditions must be met at the same time before unreasonable return is not applicable: First, once activated or tried out, the value is derogatory; Second, online commodity sellers have set up significant confirmation procedures in the necessary process of commodity sales for consumers to confirm the single purchase behavior.
However, in reality, merchants often use the platform particularity and commodity particularity as an excuse to ask consumers to click on the purchase when selling goods, that is, "confirm that it is not applicable and return goods without reason". The judge said that this is contrary to the legal provisions and is generally regarded as the "overlord clause". Merchants use this as an excuse to reply and the court will not accept it.
The court held through trial that there was a legal relationship between Xiao Li and the live broadcast merchants. As a consumer, Xiao Li’s unreasonable return request within 7 days after shopping met the conditions stipulated by law. In addition, the merchant did not prove that the mobile phone depreciated greatly after activation. Therefore, the court supported Xiao Li’s claim for a refund.
case
Credulous "online celebrity" acne becomes disfigured
Exaggeration, false propaganda, traffic fraud, selling toxic and harmful food … … In recent years, the rollover of "online celebrity" has become the "hardest hit" for live broadcast.
The judge pointed out that many "online celebrity" rely on their own traffic, become the darling of businesses, and even "stand on their own feet", but the quality of the goods they sell frequently appears problems. Liu, a well-known online celebrity model, attracted countless fans in the live broadcast room with her beautiful style. Relying on the huge energy of "online celebrity effect", Liu bought a stirring kettle, a pulverizer and other equipment, and made and sold the acne-removing and whitening universal cream by himself using Baiyanjing and chloramphenicol as raw materials. After many fans bought and used it, their faces were damaged to varying degrees. The victim reported to the public security organ, involving nearly 300,000 yuan. The public security organ immediately arrested Liu. After the court concluded the criminal case, the victim filed a civil lawsuit with the court, demanding that Liu refund the purchase price and pay ten times the compensation.
In the end, Liu was sentenced to one year and eight months in prison, suspended for three years and fined 150,000 yuan. In civil litigation, the court also supported the consumer’s claim.
In another case, Zhao Dan (stage name: fat ya), an actor of a media company, publicized and sold a self-made "pure Chinese medicine slimming capsule" through a live broadcast platform without obtaining a license for drug production and sales, which made huge profits and caused many users to have adverse reactions. The court sentenced Zhao Dan to 3 years’ imprisonment and fined 500,000 yuan for the crime of producing and selling counterfeit drugs.
Judge’s statement
Be careful with fake goods, criminal and civil responsibilities
“‘ Online celebrity ’ It’s not easy to become famous, so we should cherish our feathers. After gaining huge traffic, we should attach importance to our personal image and focus on spreading positive energy. The so-called ‘ A gentleman loves money and takes it wisely ’ 。” The judge said that in recent years, the fake bird’s nest incident of well-known anchors, the "fake sweater incident" of Luo’s goods, and some well-known TV hosts have also been exposed for fraud … … These behaviors of the anchor not only harm the rights and interests of consumers, but also wander on the edge of illegal crimes.
If there are serious quality problems in the goods, according to the provisions of the Criminal Law, producers and sellers adulterate the products, pass the fake products off as genuine ones, pass the substandard products off as qualified products, and the sales amount reaches more than 50,000 yuan, which constitutes the crime of producing and selling fake and inferior products. Whoever produces or sells fake and inferior products may be sentenced to life imprisonment at the highest. In product liability, criminal punishment does not exempt civil compensation, and consumers can still ask sellers or producers to refund the payment and make compensation.
"The anchor should take honesty as the foundation and play the law ‘ Edge ball ’ No! " The judge stressed.
Pit avoidance guide
Remember three tricks for live shopping
In view of the current chaos of live broadcast, the judge gave three suggestions:
When consumers choose live shopping with goods, they should try to choose those platforms and sellers with large scale and high credibility.
Before buying, you can know the brand, origin, performance and price of the product through physical stores and e-commerce platforms, and don’t be fooled by the anchor’s mouth. We must consume rationally. "The lowest in the whole network", "the lowest in the whole year", "the best in quality" and "never lose money when you buy it" have become the cliché of the live broadcast industry. Consumers should not believe this absolute term. At the same time, consumers should not blindly consume out of their personal love and admiration for the anchor, let alone be confused by the commodity shortage atmosphere deliberately created by the anchor and the platform.
When shopping, you should keep relevant evidence, such as advertising, promises, purchase records, payment vouchers and express delivery numbers, for future rights protection. If negotiation with the merchants fails, consumers should promptly complain to the Consumers Association and other departments or go to court to avoid missing the statute of limitations. At present, China has implemented the "Management Measures for Webcast Marketing (Trial)". Accordingly, when consumers are "chopped up" in the live broadcast room, the main bodies that can be held accountable are the anchor, the operator of the live broadcast room, and the live broadcast platform. If the product quality responsibility is involved, the producer can also claim rights.
The judge reminded that the live broadcast of goods is no longer just the commodity marketing of household appliances and daily necessities, but also the live broadcast of goods in financial services such as funds, wealth management and insurance, which is not differentiated on the live broadcast platform, resulting in confusion of the main body of financial live broadcast marketing, or hiding the risk of fraud. The judge suggested that the live broadcast platform should be supervised by classification to help different consumer groups identify products.
The platform should consolidate its responsibilities and implement the platform certification mechanism. For example, for the live broadcast rooms and anchors with good consumer evaluation and high authenticity of goods and services, the platform responsibility is materialized and visualized, so that consumers can intuitively choose guaranteed live broadcast rooms for shopping consumption. Make good use of big data to increase the efficiency of consumer risk warning. The platform can dynamically match consumers’ identity information with their consumption behaviors. For example, for minor consumers, once they find abnormal consumption behaviors such as large consumption and inappropriate consumption of alcohol and tobacco minors, they will send prompt information in time to contact their guardians, so as to reduce the situation that guardians can only cancel the large consumption of minors through litigation. Our reporter Gao Jian correspondent Qin Pengbo
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