Gao Tongwu, senior partner of Beijing Yingke Law Firm, said in an interview with Beijing Commercial Daily that Chinas current protection of portrait right has certain limitations, mainly manifested in many deficiencies and gaps in legislation. The current general principles of civil law stipulates that citizens enjoy the right of portrait, and they shall not use their portraits for profit-making purposes without their own consent. The civil code to be implemented in 2021 removes the constitutive requirement of for profit-making, but the provisions on the protection of portrait right are still unclear. It is suggested that the current law should be supplemented, and the acts of distorting, insulting and defacing portraits for non-profit purposes should be identified as infringement of the right of portrait. Clear the scope of portrait, including natural persons appearance, body appearance, portrait products and works; and clear the reasons for illegal prohibition of portrait right, including consent of the parties, illegibility of portrait, public interest needs and reasonable use.
A typical case published by the Beijing Internet court shows that in December 21, 2018, a company released its tweets on its WeChat official account, entitled courts whitening secret recipe used by Liu and so. The effect is amazing. Using the photo of plaintiff Liu Mou as the map, the article introduces the content of Chinese medicine whitening popular science, and the bottom of the tweets is accompanied by pure Chinese Herbal Mask, countdown 3 days, twenty percent off purchases and other promotional contents. The plaintiff, Liu Mou, believed that the company had infringed on its portrait right and sued the company to the court to order the defendant to apologize and compensate for the loss.
The Beijing Internet court has heard that the defendant has used the personal portrait of the plaintiff in his official account of WeChat without the permission of the plaintiff, and has displayed the information of the inside scene of the defendants business place, the mask product advertisement and so on. For the purpose of profit, the defendant uses the portrait of others for commercial publicity without authorization. His behavior has already infringed the plaintiffs portrait right and should bear the tort liability of apology and compensation for losses.
The Beijing Internet court said that the popularity of the portrait right holder is an important consideration in the calculation of compensation. For example, in one case, the defendant, a teaching and training company, without permission, used the portrait of Gao, a former employee, on its official website for commercial publicity. In this case, Gao was an ordinary obligee with no social reputation. After hearing, the court ordered the defendant to compensate the plaintiff Gao for the economic loss of 2000 yuan. In another case, the defendant, a bathroom company, without permission, displayed the portrait of a film and television actor Zhou on its official website. Considering that Zhou has a high social reputation and combined with the specific situation of the case, the court finally ordered the defendant to compensate the plaintiff Zhou for the economic loss of 30000 yuan.
Extended reading: from September 20, the downloading of tiktok and wechat tiktok in the United States is prohibited: what is the purpose of opposing the decision of the US Department of Commerce to continue to promote the new function of ios14 litigation in the United States? Should it be allowed? Source: Qiao JunJing, editor in charge of Beijing Business Daily_ NBJ11279