Pepper live challenges the high altitude limit fall case: who wakes up the cost of life? (source: video synthesis)
Two years ago, when Wu, the network anchor, was climbing a tall building in Changsha to shoot a dangerous action video, he died. At one time, the event triggered a heated discussion on the whole network. Who is responsible for the tragedy? The host who is walking on the edge of danger and challenging the limit, the network platform to promote video, and the fans and spectators who pay attention to and reward Wu? After the incident, Wus mother sued her sons platform, pepper live, for publishing the video. Recently, the second instance of this case was pronounced.
Who is the fault of the pepper anchor to challenge the sky limit?
One day, I feel sick all over. This is a label given by Wu, who calls himself the first person in Chinas high altitude extreme sports.
In the picture, Wu didnt fasten the safety belt, or even take any protective measures at all, climbing various office buildings, iron towers, chimneys and other high-rise buildings; he also held up the self portrait pole and camera equipment to shoot for himself. There are many scenes like this in the video. Wu walks, jumps, somersaults and rides a balance car on the edge of the roof. He hangs his whole body outside the high-rise building. Under the strong wind, his body is tottering.
The 26 year old Hunan Youths life ended abruptly in the process of risking his life and challenging the limits.
On November 8, 2017, Wu accidentally fell and died while climbing a building in Changsha to shoot a video. This video records the process. Wu climbed down from the side of the high-rise building, and then began to pull up. After a few actions, his feet were against the wall, and he seemed to want to climb up, but he was unable to do it. Finally, Wu fell by accident.
In November 2017, according to the forensic identification of the local public security organ, Wus death was an accident, excluding homicide.
In October 2018, his mother, He Mou, filed a lawsuit with Beijing miyin Hefeng Technology Co., Ltd., a company affiliated to Pepper live broadcast, to Beijing Internet court, believing that the company not only failed to fulfill its reasonable obligation of review and supervision, but also encouraged and promoted Wu Mous behavior, and should bear tort liability for Wu Mous death.
On May 21, 2019, the first instance of Beijing Internet court found that Beijing miyin Hefeng Technology Co., Ltd. failed to fulfill its security obligations and should bear the responsibility of network infringement, and compensate Wus mother he for all losses of 30000 yuan. Subsequently, Mijing Hefeng company appealed against the judgment. On November 14, 2019, the case opened in the second instance of the fourth intermediate peoples Court of Beijing.
Is the network platform responsible for the tragic death of the anchor?
Beijing miyin Hefeng Technology Co., Ltd. of pepper live broadcast is the appellant of the second instance of this case. They believe that Wus video shooting belongs to the legal category of self willing adventure, and should be responsible for his own behavior. Pepper platform has no obligation of security.
Beijing Miyun Hefeng Technology Co., Ltd. believes that Wus extreme sports and video shooting belong to his own adventure. Wu has the right to decide the time, place and way of the movement. It belongs to Wus personal freedom, and the platform has no right to interfere. Therefore, the platform has no fault for Wus fall and death, and should not bear tort liability.
Agent ad litem of Beijing Miyun Hefeng Technology Co., Ltd.: Wus high altitude extreme challenge is a special activity with (risk). His dare to participate in this kind of behavior is not a contempt for his own life and health. Wu can foresee the risk of this kind of behavior and has the right to choose to participate. Wu voluntarily conducts high altitude extreme challenge and knows the challenge In the case of risk, the consequences of damage are subjectively acceptable, and it is possible to foresee the consequences of damage. As a person with full civil capacity, Wu should bear full responsibility for his own voluntary risk-taking behavior.
Miyuki and wind also claimed that they are only network service providers providing storage space, and there is no fault.
Wus mother he believes that the platform not only benefits from the spread of these dangerous videos, but also invites Wu to shoot relevant videos for promotion, not just to provide storage services.
According to the account information previously submitted by both parties, Wu has 9618 fans on the pepper live platform, receiving a total reward of 170.7 yuan, including 36.3 yuan for small video, 0.5 yuan for live broadcast, and 133.9 yuan for private mail gifts. On September 12, 2017, pepper live organized a promotion activity, invited Wu to participate, and paid him 2000 yuan.
Wus mothers litigation agent: the appellant also has the right to choose not to accept the video uploaded by Wu, not to cooperate with Wu to shoot advertisements, not to invite Wu to participate in the promotion of video shooting, and to pay compensation to him. At the same time, the appellant also has the right not to use Wus video for promotion, to attract fans, to get views and even to get benefits. If the appellant does not use this, Not participating in this kind of action can also avoid damages, and also avoid taking corresponding responsibilities in this event.
According to Wus mother, her son uploaded more than 150 videos on the Pepper live platform, the vast majority of which were dangerous videos. Instead of being deleted after the audit, the platform allowed the video to spread, which in turn drove Wu to continue to take risks.
Wus mothers agent ad litem: Wus cooperation with the appellant lasted for a long time, and the number of videos uploaded by both parties was very large. The appellant clearly knew what the content of the videos uploaded by Wu was when examining various kinds of videos of Wu, and also clearly understood that the shooting of such videos had potential safety hazards to Wus own right to life. The appellant could have In order to take the necessary measures, such as deleting, blocking, disconnecting links, etc., to process the video uploaded by Wu, or to give security tips to Wu, but the appellant did not take the above measures at all.
Miyin Hefeng company believes that the high-altitude climbing activities carried out by Wu belong to the extreme challenge sports, although dangerous, but in line with the legal provisions. In addition, 94 titles of 154 videos uploaded by Wu said dangerous actions, untrained, do not imitate, etc. written by Wu himself, enough safety tips have been given.. The platform party unilaterally deleted the video, which violated the trading relationship between the two parties.
Agent ad litem of Beijing Mijing Hefeng Technology Co., Ltd.: if we assume that Wu didnt fall, we will delete him. Then Wu sued pepper live. We have a trading relationship. I am your service object. Why do you delete my video? Should pepper live bear the responsibility?
There are also different opinions on whether the video content shot by Wu is suitable for dissemination.
Wus mother believes that the platform does not review such videos, which not only encourages Wu to shoot more and more dangerous videos, but also has a bad demonstration effect on the platform audience.
Wus mothers agent ad litem: now the users and users on the Internet are getting younger and younger, and the facts and reasons they can distinguish and deal with the crisis are getting weaker and weaker. This requires us to take more responsibility for the school justice of social ideology as the provider of network services, as the video party and as the platform party Business.
Mijing and Feng think that even if these dangerous videos will produce some bad demonstration effects, it is also the ethical responsibility of network service providers, which can not be equated with legal responsibility.
Agent ad litem of Beijing Mijing Hefeng Technology Co., Ltd.: these videos have already indicated that it is a professional sport. Please dont imitate such prompt language and have already done so. Secondly, as far as this case is concerned, the legal relationship in this case is the legal relationship between Wu and Zanthoxylum, which has nothing to do with the public, nor does it involve the public, nor does it have such a matter of fact determination and legal determination to produce adverse demonstration effect on the public.
The appellant also claimed that, according to the measures for the administration of Internet information services and the regulations for the administration of internet live broadcasting services, the national laws and regulations did not include such sports as climbing tall buildings by hand as the scope of prohibition of communication. Therefore, the dissemination of Wus video is not illegal.
The interpretation of the three focuses of controversy by the court of second instance in combination with the opinions of litigation
In court, the two sides are tit for tat. Pepper live platform for the network anchor Wu Mou should do the security obligations, and should bear tort liability? For this kind of dangerous behavior video, should the platform delete it? Is communication illegal? Combined with the opinions of both parties and the facts found out in the courts trial, the court of second instance interpreted the three major controversial focuses of this case.
Dispute focus 1: does Miyuki Hefeng company have security obligations to Wu?
According to the first paragraph of Article 36 and the first paragraph of Article 37 of the tort liability law, the court of first instance presumes that MI Jing and Feng company have the security obligation to Wu. However, according to the second instance of Beijing fourth middle court, this applicable law is wrong and should be corrected.
According to the first paragraph of Article 37 of the tort liability law, managers of hotels, shopping malls, banks, stations, entertainment places and other public places or organizers of mass activities who fail to fulfill their obligations of safety and security and cause damage to others shall bear the tort liability.
The court held that cyberspace has the characteristics of openness and publicity, but as a virtual public space, cyberspace is significantly different from the real physical public space.
Cheng Hu, vice president of the fourth intermediate peoples Court of Beijing: can we extend the security obligation in the first paragraph of Article 37 of the tort law to the open virtual public space of the Internet? At present, there are still disputes. We also think that when the first paragraph of Article 6 of the tort law can be applied, it is unnecessary to apply the security obligation, and expand the security obligation of the physical space to the virtual and open cyberspace.
The first paragraph of Article 6 of the tort liability law stipulates that the actor shall bear the tort liability if he infringes upon the civil rights and interests of others due to his fault.
According to the court, cyberspace is not an extrajudicial place. Cyberspace governance is an important part of social governance, which should be regulated.
The second focus of the dispute: does the behavior of MI Jing and Feng company constitute infringement?
In this case, Mijing Hefeng company claims that Wus behavior belongs to extreme sports and is not prohibited by law, which has a positive role in promoting the public. The court held that Wu was not a extreme sport in a strict sense, and Wu was not a professional athlete. He was not only dangerous to himself, but also had the risk of hurting the innocent, causing the crowd to watch and disturbing the social order due to the fall.
Cheng Hu, vice president of the fourth intermediate peoples Court of Beijing: some extreme sports, such as rock climbing, are beneficial to personal health, and they are indeed challenging. But there is a difference between Wus climbing and what we call climbing. In recent years, the high-altitude throwing and falling objects happen constantly, and the occurrence of high-altitude falling objects has a great impact on public security and the legitimate rights and interests of the people. Then, like Wu, he has no security measures to protect his high-altitude, climbing high-altitude buildings, he is very likely to cause falling objects, fall down, hurt innocent people, so In order to maintain the safety of the people, we should regulate this kind of behavior.
The court held that the pepper live platform had a fault for Wus fall and death, played a guiding and encouraging role in Wus continuous dangerous activities, and increased the risk of Wus fall and death. Therefore, there was a causal relationship between platform behavior and Wus fall and death. The act of Mijing Hefeng Technology Co., Ltd. constitutes an infringement.
Cheng Hu, vice president of the fourth intermediate peoples court in Beijing: more than two months before Wus death, he also publicized the platform, which paid him back. So the more videos he publishes, the more traffic he actually views on this platform, which in fact plays a guiding and encouraging role between his death and his fall.
Dispute focus 3: can pepper live broadcasting platform reduce or exempt civil liability according to the so-called self willing risk rule?
In this case, MI Jing and Feng company claimed that Wus behavior was self willing to take risks. The voluntary risk-taking rule refers to that the victim, knowing the existence of a specific dangerous state, still participates in sports activities with certain risks and voluntarily assumes the risks. In the case of no intentional or gross negligence of the perpetrators who participate in the activities together, their responsibilities can be reduced or exempted.
Cheng Hu, vice president of the fourth intermediate peoples Court of Beijing: in fact, what is the main purpose of self willing to take risks? For example, when we organize an activity, we all know that it is dangerous, but we are willing to take part in it voluntarily. In the process of the activity, one participant causes harm to others. However, from the perspective of this case, it is not self willing to take risks, because the platform is neither the organizer nor the participant, so the rule of self willing to take risks cannot be applied.
According to the presiding judge of this case, there is no willing to take risks rule in the tort liability law, which is not supported by Mi Jing and Feng company. Wu volunteered to carry out such high-risk activities, and his own obvious fault for the occurrence of damage results, the platform can reduce the responsibility.
Cheng Hu, vice president of Beijing No.4 intermediate peoples Court: no matter what the reason is, for this kind of professional athlete who has not been trained and is not a high-rise building climber, he goes to climb with his bare hands. This kind of danger should be real. He chooses to engage in this kind of activity. He knows this kind of danger well. So in this case, we also think that he is In this process, he has his own fault, so in terms of the division of responsibility, in fact, the platform bears very little responsibility.
On November 22 this year, the fourth intermediate peoples Court of Beijing pronounced a judgment on the second instance of the case.
The collegial panel held that Wus death was a tragedy, and the death of his young life was a heavy blow to his family members. The court deeply grieved Wus death.
Presiding judge: because the two sides cant reach a mediation agreement, the economic cooperation and economic cooperation chamber has deliberated on it, and now it makes an oral judgment.
In the first instance judgment, the facts are clear and the applicable laws are wrong, but the judgment result is correct, so the appeal request of Beijing miyin Hefeng Technology Co., Ltd. is not supported. The judgment is as follows.
Presiding judge: dismiss the appeal and maintain the original judgment. This judgment is final.
Where is the regulatory responsibility behind the pursuit of hot traffic
Wus unfortunate fall, whether it can cause the network platform, live broadcast of dangerous behavior of the network anchor, or the viewers reflection? If there is no accident, Wu may still be the target of the online live broadcast platform, and more fans are likely to browse, watch and even follow suit. Behind the pursuit of hot spots and traffic, where is the behavior boundary and regulatory responsibility?
The competition in the live broadcast industry of the network platform is fierce. Driven by the traffic, many of the content that plays the role of legal fringes is emerging, with stimulation and thrill as the selling point. Experts believe that the network platform cannot review the content on the basis of only providing content storage services.
Zhu Wei, deputy director of the communication law research center of China University of political science and Law: the platform and its video are definitely not just the identity of the network storage service provider, but also the driving force behind it. More platforms recommend by algorithm, so in this case, you will find that the anchor is willing to choose the more and more risky way, because the more adventurous he finds, the more likely he is to be recommended, the higher the exposure.
Experts believe that the platform should have the obligation to ensure the safety of all viewers. The larger the platform, the greater the responsibility. It is not only the legal responsibility to audit the content, but also the pursuit of flow economy.
Zhu Wei, deputy director of communication law research center of China University of political science and Law: a platform with many fans and users. Besides legal responsibility, it also has social responsibility and moral responsibility. The more users, daily activities, fans and anchors of your platform, the higher your social and moral responsibilities should be.
In September this year, the state Internet Information Office issued the regulations on network ecological governance (Draft for comments) to solicit opinions from the society. In the opinion draft, in addition to the illegal information, the category of bad information is proposed to be added, including those with sexual suggestion, sexual provocation and sexual temptation; those showing bloody, thrilling and other content causing physical and mental discomfort.
Zhu Wei, deputy director of communication law research center of China University of political science and Law: including some unpleasantness, horror and disgusting videos. Is it involved in illegal activities? It may not be illegal. Do you think it involves public order and good customs? Its hard to say. But now its all right. Take this part of information out alone and turn it into bad information, and then manage it later. Maybe through this Internet ecological governance regulation, its a draft now. I think it has a better handle.
Experts believe that the live culture enlarges the curiosity of viewers, and the fans reward is undoubtedly the disguised encouragement to Wus video. As a network anchor who is popular with fans, we should also establish the consciousness of abiding by the law, abiding by the law, learning the law and using the law, and jointly cultivate a positive, healthy, upward and good network culture.
Zhu Wei, deputy director of communication law research center of China University of political science and Law: the audience rewards, sometimes encourages, sometimes gambles. So we should also reflect on it in the process of looking at it. If everyone is saying dont climb like this, dont climb like this, and you dont have a seat belt and no one beside you, once there is a problem, theres no one who can save you. Everyone will advise him. Do you think Wu will still climb the building? It is understood that in addition to Pepper live broadcast, Wus mother, he, has filed similar lawsuits against other platforms that Wu has uploaded videos, such as volcano video, milk sugar short video, content segment and Sina Weibos main operating companies. Source: responsible editor of CCTV: Du Shufei nb12556
Zhu Wei, deputy director of communication law research center of China University of political science and Law: the audience rewards, sometimes encourages, sometimes gambles. So we should also reflect on it in the process of looking at it. If everyone is saying dont climb like this, dont climb like this, and you dont have a seat belt and no one beside you, once there is a problem, theres no one who can save you. Everyone will advise him. Do you think Wu will still climb the building?
It is understood that in addition to Pepper live broadcast, Wus mother, he, has filed similar lawsuits against other platforms that Wu has uploaded videos, such as volcano video, milk sugar short video, content segment and Sina Weibos main operating companies.