Because video of its ghost cultivate produces issue,Cai Xukun and B stand recently, study a monk as a law, the angle that I feel to be necessary to stand in law analyses this problem.
Throw the verdict that gives me above all:
Up of B station share advocate the effigies right that the broken end that make ghost cultivate video that insults property violated Cai Xukun and reputation counterpoise, b stands after receiving Cai Xukun to delete the requirement of partial tort video, if be adopted not in time,delete wait for measure, the loss that expands to sequel will assume implicative tort responsibility.
(inquiry of warp knitting part, b station is not had now " broken end " relevant content video is small make up put B station share " ghost cultivate " complete star battle array)
To major UP advocate those who make is general speak the cultivate of ghost of video editing and rearrangement of property, if be not had,seek profits purpose, won't form so violate effigies right. Because of this everybody also can need not because of this panic, think from now on ghost cultivate quits all corners of the country, want everybody to not be a purpose in order to seek profits only, speak amicably, no matter be legal it may not be a bad idea, it may not be a bad idea of ghost cultivate character, can meet laugh at enemy of die out favour.
One, UP advocate whether to encroach Cai Xukun effigies to counterpoise
Basis " general rule of civil code of People's Republic of China " the 100th regulation: The citizen enjoys effigies right, agree without oneself, must not use the citizen's image in order to seek profits for the purpose.
" general rule of civil code of People's Republic of China " the 120th regulation: Full name authority of the citizen, effigies authority, reputation authority, honorary authority gets of enroach on, requirement having right stops enroach on, restore reputation, remove an effect, make an apology, OK seek redress loss.
(attention, I am here of the basis is " civil code general rule " set and not be " civil code general principles " , because be in,that is compilatory " civil code is in charge of " the authority of preparative general effigies article that attributes character advantageous position is become independently " character authority is made up " , be in " civil code general principles " in content of authority of effigies of not specific provision, the clause of active and efficient law that counterpoises about effigies accordingly is remained " civil code general rule " regulation. )
Other law and judicatory explanation also make a few relevant provisions to encroaching effigies to counterpoise, top people court carries out about carrying out " civil code general rule " the opinion of a certain number of problems sets the 139th times: It is a purpose in order to seek profits, agree to use its effigies to make shopwindow of advertisement, brand, adornment wait without the citizen, ought to hold the action that counterpoises to encroach citizen effigies.
This shows, basis " civil code general rule " and relevant judicatory explains a provision, constitute the act that violates citizen effigies right, should have two important condition normally: It is agree without oneself; 2 be it is a purpose in order to seek profits.
In judicatory practice, encroach effigies to counterpoise to have commonly the following two kinds of case:
Violate effigies authority condition one: It is a purpose in order to seek profits, agree without oneself, use other effigies
In this second incident, whether to form encroaching the controversy central issue with effigies the largest advantageous position should be to whether seek profits. According to legal provision, it is a purpose in order to seek profits only, effigies of use other of do sth without authorization just is formed violate effigies right.
Because this a lot of people think UP advocate video of cultivate of ghost of Xu Kun of the Cai that make, did not seek profits purpose, just upload B freely to stand, watch for everybody, because this is not formed,violate effigies right. This viewpoint to major Up advocate it is applicable.
Because of this everybody also can need not because of this panic, think from now on ghost cultivate quits all corners of the country, want everybody to not be a purpose in order to seek profits only, speak amicably, no matter be legal it may not be a bad idea, it may not be a bad idea of ghost cultivate character, can meet laugh at enemy of die out favour.
But if make video is it is a purpose in order to seek profits, no matter be ill will or kindness, be praise or sneer at, it is individual or company, if agree without him Cai Xukun,use its image only, form violate effigies right, need assumes legal responsibility.
Controversy focus: How to decide whether be a purpose in order to seek profits
A lot of people can have such doubt, UP advocate upload ghost cultivate video, whether do the review nodding assist that wins authority and coin seek profits? I think this also wants to divide a circumstance to look. The result that seeks profits in order to seek profits for purpose and generation is different.
If individual UP advocate just stem from an individual to like and make ghost cultivate video, upload B station to share everybody recreation, not be above after passing, seek profits for the purpose (embed in video for instance advertisement seek profits directly means) and make, although criticism of praise of platform user dot throws money,also cannot maintain so to be a purpose in order to seek profits. This user that is B station shares mode and communication means, not be the economic interest of direct pursuit.
In the meantime, is the video that share nodded by the user assist, transmit, comment and the accrual that those who cast money to bring is the front?
I see may not, in B station UP advocate nod assist or be commented on by ill will, have in the comment praise support also has mix abusively sneer at, transmit casts money to enlarge consequence to bring network force possibly even, this kind of example also has a lot of. Transmit of the comment that nod assist and cast money to give UP advocate those who bring is openly accrual or negative accrual cannot be maintained, how can you say this is to seek profits again? Cannot regard as it simply so openly accrual, more cannot say is be a purpose in order to seek profits.
If be professional corporation or group, regard a company as in order to make similar video business or profession, through making video, acquire attention amount, begin advertising Wu then, the video that make is a purpose with seeking profits namely, so this kind can be regarded as it is a purpose in order to seek profits, wanted to use effigies right person to get effigies to form tort only. This kind of UP that because this B stands,goes up advocate must consider when use other effigies, music whether tort.
So, second incident is here medium, the ghost cultivate video that place of Cai Xukun's lawyer asks to delete also is not all, just partly larger possibility is maintained to be the video of tort.
Violate effigies authority condition 2: Blame use other effigies in order to seek profits to form tort possibly also for the purpose
In judicatory practice, although not be a purpose in order to seek profits, agree without other, use other effigies forms tort possibly also, this is another kind of condition that violates effigies right.
Although " civil code general rule " article provision must be a purpose with seeking profits, but in learning manage to go up to be carried out with judicatory, think baleful damage, profane, the image that smears a citizen, or use citizen effigies to undertake assault and battery wait, also attribute the action that enroach on effigies counterpoises.
Accordingly to partial UP advocate made serious damage, profane, defame even video of contumelious ghost cultivate, form violate effigies right. If this video circulates very wide, make its reputation, position, identity is hit, brought the anguish on spirit to its oneself, basically reflect the possibility that with respect to its for effigies right person effigies gets belongings benefit to decrease, include to be mixed directly here indirect loss, include spirit to damage damage with material, still can form right now so encroach its honor to counterpoise.
In this second incident, partial UP advocate made the Cai Xukun broken end, half nude ghost cultivate video that contains contemptuous character, and upload stand in B, circulate very wide, caused to its damage, can maintain this part UP basically right now advocate form those who encroach Cai Xukun effigies authority and reputation authority. (make clear: Via editing inquiry, b station is not had now " broken end " relevant content video)
In judicatory solid Wu, already a lot of constitute the act that violates effigies right in fact but do not have seek profits the legal precedent of the purpose. Whether will the court seek profits commonly maintain for whether the three unities that enroach on effigies counterpoises, one decides the factor that mental damages responsibility considers, is not to serve as those who violate effigies right to make important document.
Anyhow, not be video of all ghost cultivate metropolis the effigies right that violates Cai Xukun and reputation counterpoise, everybody can need not panicky, each UP advocate the attention holds sense of property can, what do not play is too beyond the mark good. In the meantime, when video of cultivate of the ghost that make, not baleful damage, profane, defame insult other even, form tort possibly otherwise, assume legal responsibility.
Carry here " civil code is in charge of " the legislation that counterpoises about effigies is revised. Basis " authority of character of civil code allusion makes up draft of first instance draft " the regulation that counterpoises about effigies:
The 798th natural person enjoys effigies right, authority is made lawfully, use, the effigies that make public or permits other to use his.
It is certain that this law place says effigies is to pass the means such as video, sculpture, brushwork to be in the outside figure that the specific natural person that mirrors on carrier can be identified.
Any the 799th organizations or the effigies that the individual must not wait for other of means enroach on with ill-natured, defilement counterpoises. Without effigies right person agrees, other must not be made, use, the effigies of person of public image right, but the except that law has a regulation additionally.
Without effigies right person agrees, the obligee of effigies work must not be carried out publish effigies work, duplicate, issue, rental, exhibition involve the action that use or publicizes effigies.
Through " authority of character of civil code allusion makes up draft of first instance draft " can see, be about to finish next year " civil code is in charge of " it is important that the protection that counterpoises to effigies was made revise, "It is a purpose in order to seek profits this one requirement " will be deleted, mean 2020 " civil code is in charge of " after coming on stage, want to agree without obligee only, do sth without authorization uses other effigies to form tort possibly. Law will is opposite eventually " it is a purpose in order to seek profits " the statutory requirement that this suffers bad-mouth is made revise, in Internet times, we can obtain better protection the effigies of every citizen, privacy.
The word outside the problem: Although " authority of character of civil code allusion makes up draft " in still editing, but the trend is the can better protective effigies advantageous position after civil code allusion comes on stage, because this suggests B stands before allusion of next year civil code is passed to talk things over,settle this dispute, civil code is in charge of to be passed about once revise,protecting the legal clause that effigies counterpoises, b station may face more trouble.
2, website law responsibility
The website is like to tort video delete in time, eliminate an influence to need not assume legal responsibility, if be not adopted,delete wait for positive step to will be faced with assume joint liability.
Basis " tort liability law " thirtieth sets 6 times, the person that service of network user, network is offerred uses another person of network enroach on of civil rights and interests, ought to assume tort responsibility.
Network user uses a network to serve executive tort behavior, be adopted to delete by the person that the infringer has authority to inform a network the service is offerred, screen, disconnect the necessary step such as the link. The person that network service is offerred receives announcement hind to take necessary step not in time, to harm enlarge much and this network user assume joint liability. The person that network service is offerred knows network user uses its network to serve enroach on another person civil rights and interests, did not take necessary step, assume joint liability with this network user.
Our analysis is informed in front, the ghost cultivate video that insults property partly is to form encroach effigies to counterpoise even reputation counterpoises, b station serves the person that offer as the network, its had received a lawyer to tell letter, had been informed of a website by infringer Cai Xu Kun namely, if the website is adopted not in time,delete wait for measure, the loss that expands to sequel will assume implicative responsibility.
Controversy focus: Does the website need 24 hours to examine?
Do not need.
Although the person that network service is offerred has certain checkup compulsory, but B station shares platform as an information transmission, great majority of the content on the website is network user namely UP advocate upload independently share, the website needs to assume basic checkup only compulsory, bet tort of edition of poison, bloody force, pilfer to wait a foundation a moment to examine than denying experience to fizzle out so.
Have controversy to waiting at whether encroaching effigies to counterpoise gender, professional and the content that public to the society interest did not endanger directly, if ask B stands 24 hours to be examined strictly, to its character is try to make sb do sth which he can't do, do not have expect possibility, also be not to accord with market rule and fair principle.
Although beforehand examines a likelihood to have careless omission, but after tort incident happens, after be being asked by infringer Cai Xu Kun its delete tort video, b station should undertake after the event examine instantly, wait for tort video to ought to be deleted instantly to violating authority of Cai Xukun effigies, reputation right really, remove an effect. Right now, if take necessary step actively,B stands, remove adverse effect, do not need to assume legal responsibility; If B stands not to take necessary step, delete video, remove an effect, will assume tort to damage sequential joint liability together with the user to distensible harm.
3, law is relieved
To violating effigies authority act, the victim can request person of do harm to to stop enroach on lawfully, eliminate to hamper, remove an effect or compensate for a loss to wait. Cai Xukun can ask already tort UP advocate delete video also can ask B station deletes video, remove an effect, if partial tort UP advocate peace B station did not take positive step, cai Xukun but to lodge a complaint, the loss with corresponding seek redress.
In the meantime, much is pure share, the ghost cultivate video that does not have ill will and contemptuous property can not encroach effigies to counterpoise, no matter be B station or broad UP advocate, also need not too too panicky.
