Exclusive contract of liquidated damages for frequent occurrence of platform excavation anchor supported by the court

category:Society
 Exclusive contract of liquidated damages for frequent occurrence of platform excavation anchor supported by the court


There are many disputes about digging for each others anchor among the network live platforms.

When the dispute of two choices one of e-commerce platforms caused hot discussion, the cases of breach of contract and unfair competition disputes caused by mutual excavation of anchor between online live platforms have been in the trend of multiple occurrence.

Surging news combed hundreds of cases of disputes over live broadcast platforms and found that most of the causes of such lawsuits are: in order to lock in traffic, the live broadcast platform signed an exclusive cooperation agreement with the anchor to restrict the anchor to live on other platforms, but it still can not prevent the rival platform from competing for the popular anchor, and the anchors capricious job hopping within the contract period. Dozens of cases have been adjudicated, which show that the anchor who signed the exclusive cooperation agreement faces huge liquidated damages after changing his job; some poaching platforms are deemed as unfair competition.

In addition, dozens of published judicial documents governing objections show that many cases are still under trial.

Exclusive cooperation behind the case of compensation for the sky high price of the anchor

At the beginning of 2019, relevant news ignited public opinion: Wuhan middle court announced the civil ruling of the first instance in the case of contract dispute between the company of douyu live broadcast, Wuhan Yuhang Tianxia culture media Co., Ltd. (hereinafter referred to as Yuhang Tianxia company) and Cao Hai (online name: snake brother Colin), the famous post-90s game anchor. The ruling showed that Yuhang Tianxia company changed the lawsuit request and appealed the court to judge Cao Hai to the public The company paid RMB 145 million as liquidated damages.

As the liquidated damages claimed exceed 100 million yuan, Wuhan intermediate court decided to transfer the case to Hubei higher court for handling according to the relevant provisions of level jurisdiction. This also means that if the first trial is appealed, the lawsuit will reach the highest level.

The surging news previously reported that Cao Hai, a well-known anchor, was originally the contracted anchor of Huya, and later moved to douyu. At the beginning of 2018, he was sued by Huya. According to the judgment documents, Cao Hai was sentenced to pay more than 24 million yuan for the liquidated damages of Huya. But then, Cao Hai and the fighting fish, was fighting fish claims 150 million yuan. After that, Cao Hai returned to Huya.

In addition to the claims of nearly 150 million yuan, Caohai is also required to continue to broadcast live in the fight, and Caohai is forbidden to broadcast live on the third-party platform operated by Guangzhou Huya Information Technology Co., Ltd. (hereinafter referred to as Huya company) or other third-party platforms.

On November 1, the person in charge of douyu told surging news that douyu had signed an exclusive agreement with Caohai. In response to Caohais breach of contract, douyu filed a lawsuit and claimed for compensation from Caohai, but it is still waiting for the courts notice.

Before that, another case of compensation for the high price of the anchor that attracted widespread attention was the case of Jiang Haitao (the net name Hi Shi), the famous game anchor told by Huya company. The third person in the case was Wuhan douyu Network Technology Co., Ltd. (hereinafter referred to as douyu company). In November 2018, the second trial of Guangzhou intermediate court decided that Jiang Haitao should pay RMB 49 million as liquidated damages to Huya company.

The court found that after signing the exclusive cooperation agreement with Huya in 2016, Jiang Haitao gradually became the top network anchor in the field of live game broadcasting in China under the vigorous cultivation, promotion and packaging of Huya, and was known as the first person of King glory. Since August 27, 2017, Jiang Haitao, without the consent of Huya company, began to broadcast live on the live platform of fighting fish, which has a direct competitive relationship with Huya, resulting in the loss of a large number of active users of Huya.

Guangzhou Panyu District Court of the first instance and Guangzhou intermediate court of the second instance both believed that the competition of domestic live broadcasting platform was fierce, which induced the host of the competition platform to breach the contract during the contract period, competing for traffic and users, and set a bad example for the majority of game participants. Combined with the income of the host, the plaintiffs investment and loss, non relatively high liquidated damages were not enough to stop the breach.

In another judgment made by Guangzhou intermediate court in the same month, Zhang Hu (platform name Tiger God), the former anchor of tiger teeth platform game, was determined to intentionally violate the agreement without notifying tiger teeth company and broadcast on the live broadcast platform with competitive relationship with tiger teeth company for a long time, which constitutes a fundamental breach of contract and shall bear the liability for breach of contract. The court ruled that Zhang Hu paid RMB 5 million as liquidated damages to Huya platform.

Yang Yongheng, associate professor of Central South University of forestry science and technology, told surging news that in such cases of disputes over cooperation between live broadcast platforms and anchors, the so-called sky high liquidated damages of the media may only be felt by ordinary people, but in fact, the loss of live broadcast platforms may be greater. Of course, if the liquidated damages exceed 30% of the loss of the live broadcast platform, according to the contract law and judicial interpretation, the anchor can apply to the court to reduce as appropriate, based on the loss of the platform, taking into account the general balance of interests of both parties.

Default of anchor and unfair competition of platform

According to several live broadcast platform cases, there are not a few cases in which the default anchor was awarded huge liquidated damages by the court. The premise of compensation is that the exclusive cooperation agreement signed between the platform and the host is legal and effective.

Several legal experts introduced that as a way of market competition, exclusive cooperation agreement belongs to exclusive agreement or limited transaction in law, and two choices one and n choices one are just popular terms. In the scope of contract law, exclusive cooperation can be protected by law.

In the above two cases of Huya v. jianghaitao and Zhanghu, the court found that the service cooperation agreement signed by the two anchors and Huya company was proper in subject, true in meaning, legal and effective, and both sides should strictly abide by it. However, without notifying Huya company, the two anchors deliberately violated the agreement and broadcast it on the live broadcast platform with competitive relationship with Huya company for a long time, which has become fundamental In case of breach of contract, it shall bear the liability for breach of contract.

The plaintiff of the lawsuit is the company of the live broadcasting platform, and the defendant is the company of the anchor Li Mou and Huya live broadcasting platform. Because Li jumped from tentacle to Huya during the contract period, the tentacle company sued Li and Huya, and claimed more than 13.19 million yuan from Li and Huya for unfair competition.

According to the live broadcast of the trial of Hangzhou intermediate court, the plaintiff claimed that Li, the popular game host of the platform, is a famous anchor cultivated by Hangzhou Kaixun Technology Co., Ltd. (hereinafter referred to as Kaixun Technology) and its affiliated cooperative companies, and has exclusive game interpretation and performance services in the live broadcast of the touch, but Li jumped to Huya live broadcast within the contract period, and Huya knew that the cooperation between the two parties had not been completed At the end of the period, Li was still maliciously induced to change his job and promised to solve the breach dispute for him. According to Kaixun technology, Li and Huya have brought at least 13.19 million yuan of economic losses to the live broadcast of tentacles. Therefore, they are sued in court for compensation.

The defendant believed that the parties could negotiate, change the contract, or solve the problem according to the mechanism of breach of contract, and should not introduce the anti unfair competition law into the case.

Surging news found that as early as 2017, the case of live broadcast platform suing another platform for unfair competition had precedent through the search keyword exclusive cooperation of Faxin app.

In this case, the company of douyu platform sued Zhu Hao for breach of contract. At the same time, it sued the platforms of Shanghai xuanmo Network Technology Co., Ltd. (xuanmo company) and Shanghai maimiao Information Technology Co., Ltd. (maimiao company), which Zhu Hao had changed jobs, and asked the three defendants to bear joint and several liability for compensation for copyright infringement and unfair competition.

According to the verdict, Zhu Hao is a famous game host discovered and cultivated by the live platform of douyu. On September 1, 2015, Zhu Hao and Wuhan Yuqu Network Technology Co., Ltd. (hereinafter referred to as Yuqu company) signed a five-year cooperation agreement on game interpretation. All rights and interests of video and audio for game interpretation belong to Yuqu company. In the second half of 2016, Zhu Hao left douyu to move to the national TV platform (under the banner of xuanmo and maimiao company) without expiration of the contract. Douyu then sued, believing that the two companies violated their companys copyright, which was unfair competition, and was supported by the court of first instance.

In the second instance, the court of Wuhan intermediate court denied that xuanmo and maimiao violated the copyright of douyu, but determined that the act of digging the anchor by xuanmo and maimiao constituted unfair competition, and maintained the first instance judgment that Zhu Hao, xuanmo and maimiao jointly and severally compensated Yuqu with 900000 yuan.

The purpose of legislation is to encourage and protect fair competition

In the judgment of the above cases, Wuhan Intermediate Court pointed out that the first article of the Anti Unfair Competition Law of our country has taken encouraging and protecting fair competition as the legislative purpose, because market competition is an act of competing for market opportunities, and it is precisely because of the scarcity of market opportunities and operating resources that competition is necessary. Competition must be damaged, and the damage of fair competition must be allowed. The purpose of law is to protect competitors from unfair competition. In fact, the competition of network live broadcasting industry is the competition of platform anchor resources as the core of traffic.

The court held that the issue of whether the anti unfair competition law can be applied to the platforms malicious poaching of star anchors should be deeply analyzed. Based on the traffic, the court held that the use of other peoples contracted anchors, in essence, is to directly grab the fruits of other peoples competition - not only the high-quality anchor resources that the platform has spent a lot of people and property, but also the platform communication Audience and traffic accumulated by fierce competition and long-term operation. At the same time, we should also analyze the impact of the behaviors involved on the industry, competition order, competitors and consumers.

Yang Yongheng introduced that if the exclusive cooperation agreement between the platform and the host is freely agreed and disposed of by both parties, it generally does not constitute unfair competition for the competitors, and the exclusive signing of a host is not enough to monopolize the market. In the absence of specific provisions in the law, the boundary of the application of general terms shall be strictly controlled to reduce judicial arbitrariness and uncertainty, and at the same time, market freedom and competitive vitality shall be protected, and intervention shall be minimized. For the exclusive anchor who has a contract and cant change his job without permission, there is a penalty constraint on his own. In addition, he can also introduce the default anchor and the digging platform by strengthening the self-discipline of the industry Guide constraint. Fanpai news noted that according to the application of France trust, relevant judges comments on the case as a publishing case are as follows: business ethics is a recognized code of conduct formed in long-term business practice, which follows the standards of business ethics, and is the need to maintain and achieve efficiency. The actions of the sued infringing company belong to the acts that provide homogeneous services, but do not promote the improvement of industry efficiency, and This behavior is harmful to the development of the industry and reduces the welfare of consumers. Therefore, the defendants behavior violates the recognized business ethics of the industry and constitutes unfair competition, so he shall be liable for compensation. Source: surging news editor: Shi Jianlei, nbj11331

Yang Yongheng introduced that if the exclusive cooperation agreement between the platform and the host is freely agreed and disposed of by both parties, it generally does not constitute unfair competition for the competitors, and the exclusive signing of a host is not enough to monopolize the market. In the absence of specific provisions in the law, the boundary of the application of general terms shall be strictly controlled to reduce judicial arbitrariness and uncertainty, and at the same time, market freedom and competitive vitality shall be protected, and intervention shall be minimized. For the exclusive anchor who has a contract and cant change his job without permission, there is a penalty constraint on his own. In addition, he can also introduce the default anchor and the digging platform by strengthening the self-discipline of the industry Guide constraint.

Fanpai news noted that the app of France credit showed that the judges comments on the case as a publishing case were as follows:

Business ethics is a generally recognized code of conduct formed in long-term business practice. It is the need to maintain and realize efficiency to follow the business ethics standards. The behavior of the sued infringing company belongs to the behavior of providing homogeneous services but not promoting the efficiency of the industry, which is harmful to the development of the industry and reducing the welfare of consumers. Therefore, the behavior of the sued infringer violates this code The business ethics recognized by the industry constitutes unfair competition and shall be liable for compensation.