Shulou(Shulou.com)11/24 Report--

CTOnews.com March 15 news, today, the Supreme people's Court issued 10 typical cases of online consumption. He Xiaorong, member of the party leading group and vice president of the Supreme people's Court, said: in recent years, the Supreme people's Court has taken the initiative to adapt to the new situation and new requirements of the protection of consumers' rights and interests, strengthen judicial protection of consumers' rights and interests, and actively create a legal environment conducive to the upgrading of consumption.

He Xiaorong said that at present, with the vigorous development of China's digital economy, network consumption has become one of the basic consumption patterns of the public. The number of online consumption disputes has also increased. In the past five years, people's courts at all levels across the country have concluded a total of 99000 online shopping contract disputes and 23000 online service contract disputes. Take online shopping contract disputes as an example, 12000 cases were concluded in the first instance in 2018 and 32000 in 2022, nearly tripling the number of cases. In addition to these two types of cases, there are a large number of cases involving online consumption such as product liability, leasing contracts, travel contracts and so on.

The ten typical cases of online consumption released this time are selected from hundreds of cases reported by courts across the country. it involves issues such as negative content suppressing the validity of contracts, protection of consumer personal information, online recharging of minors, online travel booking services, time-limited order-free promotion, second-hand goods trading, online leasing, responsibility of platform operators, online food safety, effectiveness of format terms, and so on. These ten cases mainly have the following three characteristics. First, we will continue to optimize the online consumption environment and strengthen the protection of consumers' rights and interests. The second is to guide the main body of e-commerce to standardize operation and promote the sustained and healthy development of the digital economy. The third is to clarify the boundary of the exercise of rights and the scope of responsibility, and further play the leading role of judicial adjudication.

CTOnews.com with a typical case of online consumption:

Catalogue case 1: invalid agreement of "negative content suppression" that improperly interferes with search results-- A cultural communication company v. an information technology company network service contract dispute

Case 2: merchants' unauthorized disclosure of consumers' personal information due to "bad reviews" constitutes infringement-- Zhang et al. V. a merchant's network tort liability dispute.

Case 3: if a minor buys a game card beyond his age and intelligence, the guardian can recover the recharge money in accordance with the law-- Zhang so-and-so v. a digital technology limited company network trading contract dispute case

Case 4: the provider of online hotel reservation service shall perform the contract accompanying obligations such as assisting in canceling the reservation-- Xiong et al. V. a travel agency network service contract dispute case.

Case 5: if the conditions stipulated in the time-limited exemption clause are fulfilled, the operator shall waive the order in accordance with the agreement-- the dispute between Zhang and Zhou, a shopping platform information network buying and selling contract

Case 6: the continuous sale of second-hand goods for the purpose of profit should bear the responsibility of the operator-- Wang v. Chen online shopping contract dispute case

Case 7: e-commerce operators should bear punitive liability for selling prepackaged food without a production date-- Peng Mou v. an e-commerce co., Ltd. Online shopping contract dispute

Case 8: the qualification of the catering service provider unexamined by the takeout platform should be jointly and severally liable-- the product liability dispute between Wang and Company A.

Case 9: if the online car rental company fails to take out the three liability insurance in full as promised, it should be liable for the consumers' losses within the insufficient scope-- the dispute over the vehicle rental contract between Yang and a car rental company.

Case 10: the overlord clause of "not supporting after-sale protection" is invalid-- A dispute over the online shopping contract between Zhang and Wu

Case 1 invalid agreement on "negative content suppression" that improperly interferes with search results-- A cultural communication company v. an information technology company network service contract dispute

[basic case]

The plaintiff a cultural communication company provides search engine optimization and online communication services for a new energy battery brand. An information technology company of the defendant is in a cooperative relationship with the plaintiff, and the two sides signed the entrustment contract in November 2020. The annex to the entrustment contract specifies the services to be provided by the defendant. Among them, the "negative suppression" clause in the "soft text optimization" service item stipulates that the defendant optimizes the keyword search engine specified by the brand of a new energy battery to achieve that there is no obvious negative content about the brand on the first 5 pages of a search engine, and the negative suppression period is 30 days. Later, the plaintiff applied for termination of the contract on the grounds that the defendant failed to complete the negative suppression service as agreed.

[referee result]

The trial court held that the validity of the agreement to provide network "negative suppression" services should be determined in accordance with the purpose of the contract, the mode of behavior and the harm to society. From the point of view of the purpose of contracting, the purpose of negative suppression violates the principle of good faith; from the way of performance, the essence of negative suppression is to cover up the information that can be obtained by the public and affect the public's objective and comprehensive cognition of things; from the perspective of behavior harmfulness, negative suppression harms the rights and interests of consumers and the order of market competition, harms social and public interests, and violates public order and good customs. From the perspective of social effect, the negative suppression behavior disturbs the order of Internet space management and affects the orderly development of Internet public space. To sum up, the clause of "negative suppression" of the lawsuit is illegal and should be found invalid in accordance with Article 143 of the General principles of the Civil Law of the people's Republic of China (implemented in 2017) and Article 1 of the Supreme people's Court on the time effectiveness of the Civil Code of the people's Republic of China.

[typical meaning]

In the Internet era, search engine is an important source of traffic and traffic distribution channel, and search results ranking is the core part of search engine. " The "negative content suppression" service aims at making a profit and artificially interferes with the ranking of search results by means of algorithm and technology, so as to achieve positive preposition and negative postposition, which seriously affects consumers' normal, objective and comprehensive access to information, infringes upon consumers' right to know, and destroys the order of fair and orderly market competition should be deemed invalid in accordance with the law. The referee of this case is of positive significance to the maintenance of Internet consumers' right to know and the public order of Internet space.

Case 2 A businessman's unauthorized disclosure of consumer personal information due to "bad reviews" constitutes infringement-- Zhang et al. V. a businessman's online tort liability dispute.

[basic case]

Plaintiff Zhang and others posted "bad comments" online because they were dissatisfied with the defendant's "script killing" game service. The business then posted on the Wechat official account records of Wechat group chats with Zhang and others, game box surveillance video clips, Wechat personal account information, and said that "surveillance videos of the whole process can be provided to the public." Zhang and others believe that the above-mentioned acts of businesses infringe upon their rights and interests of privacy and personal information, and sue for businesses to stop infringement, apologize and compensate for mental losses.

[referee result]

The trial court held that consumers' activities in the private rooms provided by operators were private, and in order to clarify the "bad reviews", the merchants made public the surveillance video in the consumer private rooms through the official Wechat account and said that they could provide full video recordings, which constituted a violation of consumers' right to privacy; businesses published their Wechat personal account information without Zhang's consent, infringing upon the personal information rights and interests of Zhang and others. In accordance with articles 1032, 1033 and 1034 of the Civil Code of the people's Republic of China, and articles 4 and 13 of the Law of the people's Republic of China on the Protection of personal Information, it is ordered that businesses immediately stop the public surveillance video and delete the expression "can provide the whole surveillance video to the public" in the official account article and the Wechat personal account information of Zhang and others. A statement of apology was issued on the official Wechat account and compensation for moral damage was made to Zhang and others.

[typical meaning]

The role of evaluation mechanism in the field of online consumption is becoming more and more obvious, and the right of consumers to make critical comments should be protected. Business operators have the obligation to protect the personal information of consumers obtained as a result of the provision of goods or services. when responding to consumers'"bad reviews" publicly, operators should pay attention not to infringe upon consumers' right to privacy and personal information rights and interests. The judgment of this case clarifies the behavior boundary of operators when clarifying consumers'"bad reviews", protects the legitimate rights and interests of consumers, and provides judicial guarantee for the orderly operation of the online consumer credit evaluation mechanism.

Case 3 the guardian of a game card purchased by a minor beyond his age and intelligence can recover the recharge in accordance with the law-- Zhang's case against a digital technology limited company over the online trading contract.

[basic case]

Zhang Xiaomou, the daughter of plaintiff Zhang, was born in 2011 and is a fifth grader. Zhang Xiaomou used the plaintiff's mobile phone through a live broadcast platform without the plaintiff's knowledge on the evening of April 19, 2022. Under the induction of the anchor, the plaintiff paid 5949.87 yuan to a "certain point card franchise store" run by the defendant's Alipay account, which was used to buy game recharge cards, totaling 4. The four transactions occurred between 21:07:53 on April 19, 2022 and 21:30:00 on April 19, 2022. The plaintiff believes that Zhang Xiaomou, as a person with limited capacity for civil conduct, used the plaintiff's mobile phone to buy a game recharge card from the defendant in about half an hour, and spent more than 100,000 yuan from other game point card network operators and webcast rewards during the same period of the day, which obviously exceeded the range appropriate to his age and intelligence, and the defendant should return it. Then the court asked the defendant to return the recharge of 5949.87 yuan.

[referee result]

The trial court held that a civil legal act of pure benefit carried out by a person with limited capacity for civil conduct or a civil legal act commensurate with his age, intelligence and mental state is valid; other civil legal acts carried out shall be valid with the consent or ratification of the legal representative. In this case, Zhang Xiaomou, the daughter of plaintiff Zhang, is a person with limited capacity for civil conduct. Zhang Xiaomou used his father's Alipay account to pay a total of 5949.87 yuan to the point-card store run by the defendant for four times. this behavior has obviously exceeded the extent appropriate to his age and intelligence. Now the plaintiff does not ratify Zhang Xiaomou's behavior, and the defendant should return the money to the plaintiff. In accordance with articles 19, 23, 27 and 145 of the Civil Code of the people's Republic of China, the defendant was ordered to return 5949.87 yuan to the plaintiff.

[typical meaning]

At present, with the popularity of the Internet, minors online behavior daily, minors network reward, network recharge behavior occurs from time to time. In the light of the plaintiff's daughter's other recharge and reward behavior within a similar period of time, the judge in this case found that the recharge behavior involved in the case obviously exceeded the degree appropriate to her age and intelligence, and the defendant should return the recharge money to safeguard the legitimate rights and interests of minors in accordance with the law. it is conducive to creating a good cyberspace and legal environment for the healthy growth of minors.

Case 4 the provider of hotel online booking service should perform the contract accompanying obligations such as assisting to cancel the reservation-- Xiong et al. V. a travel agency network service contract dispute case

[basic case]

The plaintiff Xiong booked the "air ticket + hotel" individual travel product from the defendant through a travel App. Two days before the trip, the plaintiff applied to the defendant to cancel the reservation because the plaintiff's son was ill and could not travel. The defendant contacted his intermediate supplier about the hotel product, and the intermediate supplier reported that "200 yuan per night need to be deducted and a total of 800 yuan in liquidated damages should be deducted, and the result is not guaranteed." However, the defendant did not inform the plaintiff of the hotel cancellation policy and did not continue to ask the supplier to cancel the order, but told the plaintiff that the order could not be cancelled and that the full room fee would be charged if the order was not actually checked in. Xiong later did not actually travel, sued to the court. During the trial, after calling the hotel customer service phone in court, it was confirmed that the cancellation policy of the order involved was "if you cancel yourself, you have to deduct 200 yuan per night of liquidated damages, and if you provide a relevant disease certificate, it can be cancelled without damage except holidays."

[referee result]

The court held that the relationship between the two parties in this case was a network service contract, and the main content of the services provided by the defendant was to book the designated hotel on behalf of the plaintiff through the corresponding channels, so that the plaintiff and the hotel could successfully establish an accommodation service contract relationship. In view of the particularity of the performance of the service contract involved in the case, the reservation and other matters are not determined by the plaintiff in direct communication with the corresponding product provider, so when the plaintiff needs to cancel the reservation due to the illness of the same person, it should be considered that the defendant has the obligation to promptly assist the plaintiff to apply to the hotel for cancellation of the order and refund, rather than as soon as the reservation is successful, all obligations have been fulfilled. In this case, the hotel reservation involved in the case can in fact be cancelled and bear liquidated damages of up to 800 yuan, but the defendant did not truthfully inform the plaintiff of the situation, according to Article 509 of the Civil Code of the people's Republic of China, it should be determined that the defendant's failure to perform the collateral obligation led to the loss of the plaintiff, and the defendant should pay compensation.

[typical meaning]

In real life, it is very common for people to book hotels and other services through the online travel platform. Online booking service providers connect all kinds of service providers or suppliers upstream and the majority of consumers downstream, which often involves multiple links, which is easy to breed moral hazard that infringes upon consumers' rights and interests. The judge of this case found that the provider of hotel online reservation service should perform the contract accompanying obligations such as assistance to cancel the reservation, so as to prevent the undue impairment of consumers' rights and interests, which is conducive to the healthy development of the business model of the online tourism platform.

In case 5, if the conditions stipulated in the time-limited exemption clause are fulfilled, the operator shall waive the order in accordance with the agreement-- A dispute between Zhang and Zhou, a shopping platform information network sales contract.

[basic case]

The defendant Zhou carried out the "double 12" time-limited order-free activity in the process of operating the online store, formulated and publicized the relevant rules, and the plaintiff Zhang participated in the time-limited order-free activity when purchasing products. Zhang consulted the shop customer service before participating in the event that the rule of exemption is for those who give priority to payment. However, in the case of Zhang's payment time first, Zhou did not waive the order to Zhang in accordance with the rules. Zhang thought that Zhou constituted a breach of contract and asked Zhou to refund his payment.

[referee result]

The trial court held that according to Article 14, Article 60, Article 44 of the contract Law of the people's Republic of China (implemented in 1999) and Article 49 of the Electronic Commerce Law of the people's Republic of China, the agreement on time-limited exemption by the parties belongs to the terms of the contract with conditional performance obligations, and if the consumer meets the requirements of the exemption rules, the operator shall perform the exemption obligation, otherwise it will constitute a breach of contract. The rules learned by Zhang in consultation with the customer service before participating in the event should be regarded as the rules of this activity and should be observed by both parties. Zhang paid in advance, and Zhou failed to waive the order for Zhang in accordance with the exemption rules, which constitutes a breach of contract. Zhang's request for a refund of money from Zhou is based on the law and should be supported.

[typical meaning]

With the vigorous development of e-commerce, various forms of promotion methods emerge in endlessly. These promotions activate the market and stimulate consumption, and at the same time, they are accompanied by some problems that harm the rights and interests of consumers. The judge in this case further clarified the legal nature of the activity rules formulated by e-commerce operators in various promotional activities such as order waivers and discounts, guiding operators to operate in good faith in accordance with the contract in accordance with the law, and effectively protect the legitimate rights and interests of consumers.

Case 6: the continuous sale of second-hand goods for the purpose of profit should bear the responsibility of the operator-- Wang v. Chen online shopping contract dispute case

[basic case]

In September 2019, the plaintiff Wang, in order to study, in a second-hand trading platform, the defendant Chen issued an order to buy a notebook computer of a certain brand. After receiving the goods, he found that the computer was seriously worn and could not be recharged normally. After being sent to the official after-sales test, it was found that the internal battery of the computer was bulging, there were unofficial dismantling and alteration and non-original parts, which was obviously inconsistent with the 95% of the new advertised by Chen. Wang contacted Chen to return the goods was rejected. Wang thought that Chen constituted fraud and went to the court to ask Chen for a refund and three times the compensation according to the price. Chen argued that his handling of second-hand goods for his own use on the second-hand platform did not belong to the operators under the Consumer Rights Protection Law.

[referee result]

The trial court held that before the establishment of this contract, Chen sold a certain brand of computers and other electronic equipment many times through his second-hand platform account, which was not accidental and dealt with a small amount of idle goods, which exceeded the reasonable scope of the general disposal of second-hand idle goods, and had the intention of continuously selling goods for profit, so Chen has the identity of an e-commerce operator. According to the contact between the two sides, the two sides took the computer involved as the authentic computer as the premise of the transaction, and the computer involved examined the internal solid-state hard disk of the equipment without the original parts, and the equipment showed signs of unofficial dismantling and alteration, that is, the computer involved was not an authentic second-hand computer. If the defendant constitutes a fraud, he shall be liable for punitive damages and shall, in accordance with Article 55 of the Consumer Rights and interests Protection Law of the people's Republic of China, award Chen a refund and pay three times the amount of compensation.

[typical meaning]

The trading mode of idle goods is a typical mode in digital economy. The emergence of second-hand goods trading platform is conducive to the revitalization and reuse of idle goods. However, in reality, some people do business in the name of trading idle goods on the second-hand trading platform, and refuse to bear the responsibility of operators on the grounds of trading idle goods for their own use after commodity problems. In this case, the judge synthesizes the nature, source, quantity, price, frequency and income of the goods sold by the sellers, and finds that the sellers who continuously sell second-hand goods for the purpose of profit should bear the responsibility of the operator. it is conducive to better safeguarding the legitimate rights and interests of consumers, which can be used for reference for the handling of similar cases.

Case 7 e-commerce operators should bear punitive liability for selling prepackaged food without a production date-- Peng Mou v. an online shopping contract dispute of an e-commerce co., Ltd.

[basic case]

After the plaintiff Peng bought four pieces of "XX pressure slimming candy" (two boxes of 60 pieces each) from an online store opened by an e-commerce company of the defendant, the store delivered the goods to Peng by express delivery after paying a total of 1475.60 yuan. After receiving the above goods and eating the part, Peng found that although the packing box of the goods was marked: the shelf life is 24 months; the manufacturer is a slim limited company; the production address is XXX, XX District, XX City, XX Province; the production date is shown in the spray code, but there is no spray code mark on the product packaging, nor can the relevant information of the manufacturer be found. Peng then sued to the court on the grounds that an e-commerce company sold food that did not meet food safety standards, asking an e-commerce company to refund 1475.60 yuan and pay punitive damages of ten times the amount.

[referee result]

The court held that an e-commerce company, as a food operator, sold "XX pressure slimming candy" without a production date mark and a fictional manufacturer on the e-commerce platform, which belongs to the situation of "producing food that does not meet food safety standards or operating food that knowingly does not meet food safety standards" as stipulated in Article 148 of the Food Safety Law of the people's Republic of China. According to Article 11 of the interpretation of the Supreme people's Court on several issues concerning the Application of the Law to the trial of Civil disputes over Food Safety (1), it shall bear the liability of punitive damages and order an e-commerce company to refund Peng's loan of 1475.60 yuan. and pay compensation of 14756 yuan of ten times the amount of the payment.

[typical meaning]

At present, it is very common for the public to buy food through the network. at the same time, for consumers, online food has certain risks because of the virtualization of the trading environment. Due to the lack of production date information on prepackaged food packaging labels, consumers are unable to judge food safety, which has a major hidden danger of harming consumers' health and life safety. The judge in this case found that e-commerce operators selling prepackaged food without a production date should bear punitive liability, compact the main responsibility of food operators, and further standardize the order of online food trading.

Case 8 the qualification of the catering service provider unexamined by the takeout platform should be jointly and severally liable-- the product liability dispute between Wang and Company A.

[basic case]

Defendant An operates a takeout catering platform to provide takeout ordering services, and solemnly promises to consumers: our platform has conducted a strict on-the-spot examination of the food business license of the online catering service provider, and ensure that the operator's name, business place, main business form, business project, validity and other permit information specified in the food business license of the online catering service provider is legal, true, accurate and valid. Plaintiff Wang bought a Spicy Hot Pot from a Spicy Hot Pot store on the platform and found that the Spicy Hot Pot store did not obtain a food business license. Wang sued to the court, demanding that Company An and the Spicy Hot Pot store bear joint and several liability.

[referee result]

The trial court held that the takeout catering platform operated by Company An is a third-party platform for online transactions, and in accordance with Article 131 of the Food Safety Law of the people's Republic of China and the commitments made by Company An on the takeout platform, company A shall register the food operators in the network with their real names and examine whether they have obtained a food business license, but Company A has not fulfilled the above obligations. As a result, Wang bought the food made by a merchant without food management qualification, and his legitimate rights and interests were damaged, and Company A should bear joint and several liability with the food operator.

[typical meaning]

In the context of the digital economy, the Internet platform should fulfill its main responsibility in accordance with the law, especially the takeout catering platform involving consumers' health, and should strengthen the examination of the identity and business license qualification of catering service providers in the platform. The judge in this case makes it clear that if the operators of the takeout catering platform fail to fulfill their qualification examination obligations in accordance with the law, resulting in damage to the legitimate rights and interests of consumers, they shall bear joint and several liability for compensation to ensure that the health and safety of the people will not be illegally infringed.

Case 9 online car rental company fails to take out three liability insurance in full as promised, and should be liable for consumers' losses within the scope of deficiency-- A dispute over the vehicle rental contract between Yang and a car rental company

[basic case]

The plaintiff, Yang, leased a minibus to a car rental company from the defendant through a car rental App, and enjoyed the "premium service" for 4 days. A car rental company is the operator of the car rental App. Car rental App states: "after you purchase the premium service, you do not have to bear the loss within the insurance coverage and the tire loss outside the insurance coverage." In the insurance liability, a car rental company promised that the amount of commercial third party liability insurance was 200000 yuan, but only 50000 yuan was actually insured. Later, Yang drove a leased vehicle and had a traffic accident, resulting in property losses to others. Due to insufficient commercial third party liability insurance, Yang was sentenced to 428000 yuan in compensation for outsiders after deducting the amount of compensation received through the insurance. Later, Yang sued to the court and asked a car rental company to pay 428000 yuan in compensation for the accident.

[referee result]

The trial court held that a car rental company promised to insure commercial third party liability insurance with an amount of 200000 yuan, and the premium service showed that the lessee did not have to bear the losses within the scope of the insurance indemnity, but in this case, the commercial third party liability insurance premium paid by the insurance company after Yang's traffic accident was only 50000 yuan, and the difference of 150000 yuan belonged to the loss that Yang could have avoided through commercial insurance, and the loss should be borne by the defendant. According to Article 107 of the contract Law of the people's Republic of China (which came into force in 1999), the defendant was awarded a car rental company to compensate the plaintiff Yang 150000 yuan.

[typical meaning]

Network car rental platform is a typical business model of digital empowerment. In the actual operation, in order to avoid risks and improve profits, operators violate the promises made to the car renters and take out commercial insurance with lower insurance amount for the leased cars. The judge in this case determines that the online leasing company bears the liability for compensation caused by insufficient insurance, establishes the correct value orientation, guides the online leasing company to operate in good faith, and protects the legitimate rights and interests of car rental consumers.

The overlord clause of case 10 "does not support after-sale protection" is invalid-- A dispute over the online shopping contract between Zhang and Wu

[basic case]

In December 2020, the plaintiff Zhang bought a brand second-hand women's bag from Wu on an online trading platform with a price of 14000 yuan. The seller guaranteed it to be authentic and promised to pay on delivery, such as a fake bag. Later, Zhang commissioned a testing agency to carry out testing and found that the bag was not authentic, so he sent the bag back to Wu. Zhang failed to ask for a refund, so he sued the court for a full refund. The defendant Wu stated that he was specialized in luxury goods trading and had made many transactions with the plaintiff, arguing that the transaction was cash on delivery, that the buyer's payment indicated that the quality of the goods had been recognized, and that the platform's "user code of conduct" was clear: "after the transaction is successful, it does not support after-sale protection of rights", so it does not agree to return the goods.

[referee result]

The trial court held that the content of "the completion of the transaction and does not support the protection of after-sale rights" in the "Code of user Conduct" of the platform is a clause drawn up in advance by e-commerce operators for reuse and without consultation with the other party when concluding the contract, which is a standard clause. The standard clause unreasonably exempts the operator from responsibility and excludes the rights of consumers. according to Article 1 of the provisions of the Supreme people's Court on several issues applicable to the trial of Internet consumption disputes (1), it should be deemed invalid.

[typical meaning]

In practice, there are situations in which e-commerce operators make use of their dominant position to formulate unfair and unreasonable standard terms to infringe upon the legitimate rights and interests of consumers. The judge in this case examines the legality of the online consumption format terms and makes a negative evaluation on the format terms that unreasonably exempt operators from responsibility and excludes consumers' rights. effectively safeguard the legitimate rights and interests of consumers and a healthy and clear consumption environment.

Welcome to subscribe "Shulou Technology Information " to get latest news, interesting things and hot topics in the IT industry, and controls the hottest and latest Internet news, technology news and IT industry trends.