The live broadcast platform and online celebrity anchor have been interdependent communities of interests since their appearance. With the increase of the number of live broadcast platforms and the escalation of competition, the conflict of interests between the two parties has intensified.
Online celebrity anchor is favored by live broadcast platforms because of its huge fan base and high-quality content, and it is also the main target of poaching between platforms. In recent years, some well-known anchors have jumped ship from time to time. In addition to fighting with their platforms, some anchors have even been brought to court.
Recently, a dispute caused by anchor job-hopping has aroused social concern.
Jia is the contracted anchor of a live broadcast platform. In April 2017, during the contract period with the original live broadcast platform, Jia went to another live broadcast platform for live broadcast activities. Therefore, the original live broadcast platform sued Jia to the court.
Recently, the Shanghai No.1 Intermediate People’s Court made a final judgment on this case, upheld the first-instance judgment of the Shanghai Pudong New Area People’s Court, and ordered Jia to stop violating the agreement with the original platform, continue to perform the obligation of inaction in the agreement with the original platform, and immediately stop providing live broadcast services or similar live broadcast activities for the new platform and any third party. Jia should compensate the original platform for liquidated damages within ten days from the date of the effective judgment.
In recent years, there have been many cases of similar lawsuits between anchors and platforms. The reporter combed similar cases and found that how to identify the relationship between the anchor and the platform, how to determine the amount of compensation, and how to find a balance between the anchor’s freedom of employment and the demands of the old club to continue to perform the contract have always been the focus of controversy.
How to identify the relationship between platform and anchor?
The reporter found out that the relationship between the anchor and the platform can be roughly divided into three types:
First, the anchor signed a sharing agreement with the live broadcast platform, that is, the anchor has the right to live broadcast, can perform live performances on the platform, and get certain gifts and rewards. At the same time, the anchor is not subject to the management constraints such as labor time and total labor stipulated by the live broadcast platform, nor does it engage in other labor tasks arranged by the live broadcast platform.
Second, the anchor becomes a contracted artist of the live broadcast platform, and is bound by a series of labor rules and regulations of the platform. While obtaining guaranteed economic income, it needs to undertake corresponding duties and tasks, including the assessment of multiple standards such as live broadcast duration, content quality, number of fans and live broadcast activity.
Third, the anchor signed a sharing cooperation agreement with the live broadcast brokerage company or guild, and the brokerage company or guild built the anchor in an all-round way. At the same time, the brokerage company cooperated with various live broadcast platforms to cultivate the incubating anchor.
Then, among these three relationships, which one constitutes a labor relationship?
In this regard, Zheng Ning, deputy director of the Department of Law, Department of Law, Communication University of China, analyzed that it is necessary to satisfy two conditions, namely, economic and personal dependence, to determine that the live broadcast platform and the anchor constitute a labor relationship. Economic relationship means that the anchor provides labor and the live broadcast platform gives remuneration; Personal attachment means that the anchor’s working time, content and methods are constrained by the rules and regulations of the live broadcast platform or specific management behaviors. In line with the above two conditions, there is a labor relationship between the anchor and the live broadcast platform.
"As far as the first and third cases are concerned, there is no personal attachment between the anchor and the live broadcast platform, and the anchor is independent. Therefore, these two situations do not constitute labor relations; As far as the second case is concerned, the anchor provides labor, the live broadcast platform pays remuneration, and at the same time, it is managed by the live broadcast platform and has personal dependence, so it constitutes a labor relationship. " Zheng Ning said.
In the view of Wang Yanhui, a Shanghai lawyer, three conditions need to be considered to determine whether there is a labor relationship between the live broadcast platform and the anchor: First, whether the employer and the employee meet the subject qualifications stipulated by laws and regulations; Second, whether the various labor rules and regulations formulated by the employer according to law are applicable to the workers, and whether the workers are subject to the labor management of the employer and engaged in paid labor arranged by the employer; Third, whether the labor provided by the laborer is an integral part of the employer’s business. According to the above conditions, it can be judged whether there is a labor relationship between the platform and the anchor.
"Therefore, in the above three situations, only the second one meets the conditions for forming labor relations." Wang Yanhui said.
However, Wang Quanxing, a professor at the Law School of Shanghai University of Finance and Economics, believes: "The live broadcast activity of the network anchor on the live broadcast platform is an activity in which the platform and the anchor jointly provide video products or services to the audience, and it is also the digital labor and remote labor provided by the anchor to the platform in the virtual place arranged by the platform, which constitute the production factors of the platform’s business activities of providing video products or services to consumers; The anchor shall abide by the management rules of the platform when engaging in anchor activities in the virtual places arranged by the platform. At the same time, the relationship between the platform and the anchor is continuous with the anchor activity as the object. Therefore, although the relationship between the platform and the anchor is different from the labor relationship in the traditional format, that is, it does not have all the elements of labor relations, but it has some elements of labor relations, such as subordination and continuity. "
Wang Quanxing said that as for the "cooperative relationship" agreed by the anchor and the platform, it is not a standardized legal concept, nor is it a famous contract concept. Any contractual relationship, including labor contracts, is cooperative. Therefore, the so-called "cooperative relationship" is not mutually exclusive with contracting relationship, entrustment relationship and labor relationship.
"In the terms of the contract, the anchor and the platform do not belong to the labor relationship or employment relationship ‘ Know ’ , and can not be used as the sole basis for determining whether it is a labor relationship. If the anchor has the facts that meet the requirements of labor relations in the process of cooperation, and this fact is also the agreement of both parties, such as the fact that the anchor undertakes the obligation of non-competition, it is the element that constitutes subordination. Therefore, whether labor relations are determined or not should be judged whether there are facts that meet the requirements of labor relations. " Wang Quanxing said that there are certain reasons for determining the nature of the so-called "cooperative relationship" between the platform and the anchor.
If it constitutes a labor relationship, workers can safeguard their rights and interests according to the labor law. Then, if it does not constitute a labor relationship, can the anchor effectively protect his rights and interests?
In this regard, Zheng Ning said that in some cases, although the anchor and the live broadcast platform do not constitute a labor relationship, there is a contractual relationship between the anchor and the live broadcast platform, and the anchor can safeguard his legitimate rights and interests according to the provisions of the contract law. There is a contractual relationship between the anchor and the live broadcast platform. The contract follows the principles of equality, voluntariness and good faith. Both parties can determine the contents of the contract through consultation. When one party thinks that there is fraud, coercion, obviously unfair or major misunderstanding, it can request the court or arbitration institution to cancel or change the contract. The parties to a contract may also stipulate liquidated damages in the contract. When one party violates the contract, the other party may request the defaulting party to pay liquidated damages and other ways to assume responsibility.
How to evaluate the liquidated damages for job-hopping
Anchor is the core resource of live broadcast platform, and the competition between platforms will also affect the value of anchor. In the fierce competition between live broadcast platforms, the value of the anchor is constantly being raised, and even there is a false high situation. At the same time, some online celebrity anchors think that their popularity depends on their own abilities, but the platform thinks that they have invested in packaging, publicity, planning and even broadband resources. Therefore, when some online celebrity anchors change jobs, they are often asked by the live broadcast platform to pay high liquidated damages. In recent years, the amount of liquidated damages has been increasing. However, how to evaluate the liquidated damages?
"On the legal level, the setting of liquidated damages has two main meanings: on the one hand, it is to protect the transaction, and it is a means of punishment for the defaulting party; On the other hand, it is also the most important function of liquidated damages, that is, to make up for losses, because one party’s breach of contract will often bring economic losses to the observant party, including actual losses and expected benefits. The determination of the amount of liquidated damages should be based on the actual loss of the observant party, and the observant party should prove its actual loss and expected benefit. If the breaching party thinks that the liquidated damages claimed by the other party are too high, then it has the right to ask the court to make adjustments, and the court will also make reasonable judgments according to the actual situation and the general situation in the industry. " Wang Yanhui said.
In this regard, Zheng Ning’s point of view is: "As far as the assessment of liquidated damages is concerned, there are two situations: first, there is a labor relationship between the anchor and the live broadcast platform. According to the provisions of the Labor Contract Law, the platform provides training fees for the anchor, and the service period is agreed, and the anchor can be claimed to pay the training fees that have not been fulfilled. If the anchor terminates the contract in breach of contract, or violates the confidentiality obligations or non-competition restrictions agreed in the labor contract, causing losses to the employer, it shall be liable for compensation. "
"Another situation is that there is a contractual relationship between the anchor and the network platform." Zheng Ning said that the contract law stipulates that the parties may agree that one party shall pay a certain amount of liquidated damages to the other party in case of breach of contract, and may also agree on the calculation method of the amount of damages arising from breach of contract. If the agreed liquidated damages are lower than the losses caused, the parties may request the people’s court or arbitration institution to increase them; If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people’s court or arbitration institution to reduce them appropriately. The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of People’s Republic of China (PRC) Contract Law (II) stipulates that the agreed amount of liquidated damages exceeds 30% of the loss, which can generally be regarded as "excessively higher than the loss caused". Therefore, in the contract, the anchor and the network platform can agree on the liquidated damages in advance, and when one party violates the agreement, the other party can claim to pay the liquidated damages.
In Wang Quanxing’s view, in labor relations and labor law, the application of liquidated damages is subject to legal restrictions, and compensation has legal rules. In civil contracts, we should pay more attention to the principle of fault, the principle of fairness and the proof of damage facts for liquidated damages and compensation.
Both sides should raise their legal awareness.
Some people think that anchor job-hopping is an act that lacks the spirit of contract; Others believe that this is normal business competition. As anchors who want to jump ship, they want to get a job on a new live broadcast platform; As an old club, the anchor is generally required to continue to perform the contract and compensate for the losses. So, how to balance the different demands between the anchor and the live broadcast platform?
In this regard, Wang Yanhui said that according to the provisions of the Contract Law, the observant party has the right to choose to terminate the contract and demand payment of liquidated damages, and also has the right to choose to ask the defaulting party to continue to perform the contract. However, the purpose of China’s civil law is not only to protect transactions, but also to protect the freedom of transactions as much as possible. If the anchor has reasonable reasons to prove that he can’t continue to perform the contract with his old club, then the law generally won’t "buy and sell" and ask him to continue to broadcast live on the original platform.
In Zheng Ning’s view, in the case of labor relations, the labor law stipulates that workers have the freedom to work, and they can terminate the labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probation period. Therefore, the anchor has the right to terminate the labor contract in accordance with the provisions of the labor law. The employer can only demand compensation for the corresponding losses through terms such as non-competition, confidentiality obligations and training.
"In the case of a contractual relationship, both parties shall exercise corresponding rights and perform corresponding obligations in accordance with the contents of the contract agreed in advance. The live broadcast platform may require the anchor to pay liquidated damages and compensate for the losses for the anchor’s breach of contract. However, the subject matter of the contract has personal attributes and is not suitable for enforcement. Therefore, after the anchor pays the liquidated damages, the anchor can broadcast on the new platform. " Zheng Ning said.
In Wang Quanxing’s view, there is a legal basis for non-competition in labor relations. Because the restriction of non-competition is a restriction on the freedom of workers to choose a job, it is conditional for workers to undertake the restriction of non-competition, and it is based on the compensation given to workers by employers. As for whether the non-competition clause can be stipulated in the civil contract, there is no legal basis in China. There must be a legal basis for agreeing on non-competition. Even if it is allowed to agree on non-competition, the obligation to undertake non-competition should be conditional and have economic compensation as consideration. Otherwise, obviously unfair.
"In reality, many live broadcast platforms are unwilling to form a labor relationship with the anchor on the one hand, and require non-competition restrictions on the anchor on the other hand, and their goals are conflicting. In fact, choosing the arrangement of labor relations may not be unfavorable to the live broadcast platform. " Wang Quanxing said.
Then, once the anchor changes jobs, how should the anchor and the platform protect their rights and interests?
"Improve legal awareness. When signing a contract, clarify the legal relationship between the two parties, that is, clarify whether it is a labor relationship or a contractual relationship, and then stipulate the rights, obligations and legal responsibilities of both parties in detail. The contract should clearly stipulate the remuneration standard, payment method, payment period, etc., and determine a reasonable amount of liquidated damages. If conditions permit, it is best to hire legal counsel or consult legal experts. " Zheng Ning said.
"According to my understanding of this industry, many anchors are still young, their social experience is not rich, and their legal awareness is not strong. If you want to guarantee your own interests, the anchor must first sign a formal contract with the platform, and no matter what form of cooperation, it should be implemented in writing. " Wang Yanhui suggested that the rights and obligations of both parties should be clearly stipulated in the contract, and the anchor should be familiar with his obligations and the legal ways to safeguard his interests when his rights are violated. In addition, both the anchor and the live broadcast platform should keep their contracts and communication evidence in case of emergency. Live broadcast belongs to a new industry, which lacks corresponding laws and regulations to regulate. Only by improving the legal awareness can employees in this industry have better development.
□ Our reporter Han Dandong
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