Judge and compensate 400,000 yuan! Weinian won the final trial, and the court ruled that Erxi cultur

　　　　1、 The Anti Unfair Competition Law stipulates that operators shall not fabricate or disseminate false or misleading information to damage the business reputation and commodity reputation of competitors. Different from other acts damaging reputation right, the legislation makes it clear that commercial defamation is limited to between operators and competitors. The plaintiff who has the right to file an unfair competition lawsuit must have a specific and specific competitive relationship with the defendant, that is, the competitive relationship is a constituent element of the specific unfair competition between the plaintiff and the defendant.

　　2、 To judge whether the sued tort constitutes a commercial defamation act, we should make a comprehensive judgment on the basis of investigating the objective performance of the sued tort, in combination with the attributes of the subject, the subjective purpose and the object infringed by the sued tort. In this case, the content of the Statement involved in the case is false information or misleading information. As a competitor in the same industry and a subject with many connections with Weinian Company, Erxi Company published and disseminated the above false information or misleading information on the Internet, and used obvious derogatory words to advertise to the public. It has obvious market competition attributes. Its behavior goes beyond the scope of exercising rights and affects the trading order of fair competition, Constitute commercial defamation.

　　3、 The criteria for judging the damage to the business reputation and service reputation of competitors should be whether the sued infringement is enough to cause misunderstanding of the relevant public and whether it has caused damage to competitors, and not only whether it has directly caused real investment reduction and project termination as the basis for judging the consequences of the damage.

　　party

　　The appellant (the defendant in the original trial): Hangzhou Erxi Culture Media Co., Ltd., whose domicile is Room 113, 1st Floor, Building 1, No. 1188 Bin'an Road, Changhe Street, Binjiang District, Hangzhou, Zhejiang Province. Legal representative: Yang Ziyu, Executive Director and General Manager. Entrusted litigation agent: Jin Zhupeng, lawyer of Beijing Jingshi (Hangzhou) Law Firm. Entrusted litigation agent: Li Hao, lawyer of Beijing Jingshi (Hangzhou) Law Firm.

　　Appellee (Plaintiff of the original trial): Hangzhou Weinian Brand Management Co., Ltd., whose domicile is Room 01-02, 1st Floor, Room 01-02, 2nd Floor, Room 01-02, 4th Floor, Building 12, No. 20, Science Park Road, Baiyang Street, Qiantang New District, Hangzhou, Zhejiang Province. Legal representative: Liu Tongming, Chairman and General Manager. Entrusted litigation agent: Xu Juan, lawyer of Zhejiang Kenting (Suzhou) Law Firm. Entrusted litigation agent: Wang Qiongfei, lawyer of Zhejiang Kenting Law Firm.

　　Defendant of the original trial: Yang Ziyu. Entrusted litigation agent: He Xinran, lawyer of Beijing Deheng (Hangzhou) Law Firm.

　　Trial process

　　The appellant Hangzhou Erxi Culture Media Co., Ltd. (hereinafter referred to as Erxi Company), the appellee Hangzhou Weinian Brand Management Co., Ltd. (hereinafter referred to as Weinian Company) and the defendant Yang Ziyu in the original trial filed an appeal against the civil judgment of Hangzhou Railway Transport Court (2021) Zhe 8601 Min Chu No. 2217. After the case was filed on May 26, 2022, the Court formed a collegial panel to hear the case according to law. The case has now been concluded.

　　Appellant claims

　　Erxi Company's appeal request: 1. rescind the (2021) Zhe 8601 Min Chu No. 2217 judgment made by the Hangzhou Railway Transport Court, and remand for retrial or change the judgment according to law to reject all the claims of Weinian Company in the first instance; 2. The litigation costs of the first and second instance of this case shall be borne by Weinian Company.

　　Facts and reasons: 1. The act of Erxi Company issuing the Statement is reasonable and causal. Weinian Company acts as an agent for accounting and tax declaration, Erxi Company makes up the tax payment, and Weinian Company issues the Disclaimer, which are objective facts. It does not exclude the subjective purpose of competitors by issuing derogatory words, and does not constitute commercial defamation; 2. The compensation amount determined by the court of first instance is too high.

　　The court of first instance held that

　　The court of first instance held that the focus of the dispute in this case was: 1. Whether Weinian Company was a qualified plaintiff in this case; 2、 Whether the sued behaviors of Erxi Company and Yang Ziyu constitute commercial defamation of Weinian Company; 3、 If it constitutes a commercial defamation, how should Erxi Company and Yang Ziyu bear the tort liability.

　　1、 Whether Weinian Company is a qualified plaintiff in this case

　　According to Article 11 of the Anti Unfair Competition Law of the People's Republic of China (hereinafter referred to as the "Anti Unfair Competition Law"), operators shall not fabricate or disseminate false or misleading information to damage the business reputation and commodity reputation of competitors. Different from other acts damaging reputation right, the legislation makes it clear that commercial defamation is limited to between operators and competitors. The plaintiff who has the right to file an unfair competition lawsuit must have a specific and specific competitive relationship with the defendant, that is, the competitive relationship is a constituent element of the specific unfair competition between the plaintiff and the defendant. The understanding of the competitive relationship should be carried out from the following three aspects: 1. the relationship between business operators in the same industry, 2. the competitive relationship generated by striving for trading opportunities for themselves or others, and 3. the competitive relationship generated by destroying the competitive advantage of others. From the essence of anti unfair competition, the competitive relationship is the legal relationship arising from the damage to the competitive interests, that is, the relationship between the damage to the competitive interests and the damage.

　　In this case, Weinian Company claims that its business scope overlaps with that of Erxi Company. Both parties have horizontal competition in actual business activities. Although both parties have cooperation, they operate independently in business. Weinian Company and Erxi Company have a competitive relationship in terms of commercial interests. Erxi Company and Yang Ziyu argued that Weinian Company and Erxi Company are the parent company and the subsidiary company, and there is no competition intention and relationship between them in terms of business scope, profit distribution, enterprise personnel, company relationship, signing KOL, etc. The court of first instance held that, according to the facts that have been found out, from the perspective of the main identity relationship, Weinian Company is a shareholder of Erxi Company, with a shareholding ratio of 51%. Yang Ziyu once served as the vice president of commerce in Weinian Company, and Liu Tongming, the legal representative of Weinian Company, served as the supervisor in Erxi Company. However, both Weinian Company and Erxi Company have independent legal personality, and can independently bear civil liability and carry out business activities; From the perspective of the registered business scope of Weinian Company and Erxi Company, both parties include performance brokerage, advertising release, etc., and the business scope overlaps somewhat; According to the evidence submitted by Weinian Company, both parties can sign the We Media Cooperation Agreement and carry out new media business service activities with outsiders in their own names in the actual operation. Therefore, there is a competition for market resources such as customer groups and trading opportunities between Weinian Company and Erxi Company, and there is a relationship of damage and being damaged in terms of competitive interests. The employment relationship between the parent company, subsidiary company, Liu Tongming and Yang Ziyu does not constitute a barrier to the competitive relationship between the two parties. Weinian Company has the rights and interests basis to file a lawsuit in this case, and is a qualified plaintiff in this case.

　　2、 Whether the sued behaviors of Erxi Company and Yang Ziyu constitute commercial defamation of Weinian Company

　　Weinian Company claimed that the statement in the Statement concerning the case issued and disseminated by Erxi Company and Yang Ziyu constituted a commercial defamation, The contents are as follows: "In view of Hangzhou Weinian Brand Management Co., Ltd.'s cheating, dishonesty and other improper behaviors towards its contracted bloggers, including our company, and Weinian's serious damage to the interests of our company, industry and partners during the management of our company's financial, tax and legal affairs, our company announced to terminate all contracts with Weinian. Before this statement is issued, our company has submitted reports and litigation materials to the relevant departments, and reserves the right to Weinian has the right to take further legal action. "

　　According to Article 11 of the Anti Unfair Competition Law, the constitutive elements of commercial defamation include the subject, behavior and damage result, that is, the subject is the operator and the competitor, the behavior is "fabricating and disseminating false information or misleading information", and the damage result is "damaging the competitor's commercial reputation and commodity reputation". To judge whether the sued tort constitutes a commercial defamation act, we should make a comprehensive judgment on the basis of investigating the objective performance of the sued tort, in combination with the attributes of the subject, the subjective purpose and the object infringed by the sued tort.

　　(1) Whether the sued behavior is fabricating and disseminating false information or misleading information

　　Weinian Company claimed that Erxi Company and Yang Ziyu had no evidence to prove that Weinian Company had been found guilty by judicial judgment or administrative decision when they issued and disseminated the Statement involved in the case. Erxi Company and Yang Ziyu argued that they were afraid of being lost by the parent company without knowing their profits and losses, and issued the Statement concerning the case to cancel cooperation, not to slander Weinian Company. Moreover, Weinian Company itself was at fault, and Erxi Company and Yang Ziyu's behavior was reasonable and causal.

　　The court of first instance held that the commercial defamation in the Anti Unfair Competition Law was objectively manifested as fabricating and disseminating false or misleading information. False information refers to information whose content is untrue and does not conform to the actual situation; Misleading information is vague, one-sided, exaggerated or contains true information, but the statement of facts is not comprehensive or the deduction is illogical, which will objectively lead to misunderstanding of the audience. In this case, to judge whether the content of the Statement involved in the case is false or misleading information, we should make a comprehensive judgment based on the relationship between Weinian Company and Erxi Company and the background of issuing the Statement involved in the case and whether the content of the Statement involved in the case is objective and comprehensive. According to the Disclaimer issued by Weinian Company to Erxi Company with the official seal of Weinian Company, Erxi Company found that Weinian Company failed to declare the financial statements and other accounting details with Erxi Company before tax declaration in the process of financial and tax management and implementation, and objected to the aforesaid accounts managed by some Weinian Company, However, in this Disclaimer, both parties did not confirm that Weinian Company caused realistic consequences of serious damage to the interests of Erxi Company, and Erxi Company did not submit evidence to prove that Weinian Company had cheated, dishonest and other misconduct against its contracted bloggers including Erxi Company, or seriously damaged the interests of Erxi Company, industry and partners during the period of managing the financial, tax and legal affairs of Erxi Company. According to the evidence on record, it cannot be proved that the content of the Statement concerning the case issued by Erxi Company and Yang Ziyu is true information stated according to objective facts, which should be false information or misleading information. In the defense opinion of Erxi Company and Yang Ziyu, it is also clear that "without knowing the profits and losses, they are afraid of being lost by the parent company, and the statement involved in the case is intended to terminate the cooperation", that is, as close partners, Erxi Company and Yang Ziyu did not carry out effective and honest communication with Weinian Company, and there is no evidence to prove the authenticity of the statement involved in the case, that is, they issued and disseminated the statement involved in the case, Pointing to the fact that Weinian Company has cheated, dishonest and other improper behaviors against the signed bloggers, and has seriously damaged the interests of Erxi Company, the industry and partners in financial, tax, legal and other aspects, while making no objective statement, it also uses obvious derogatory words to negatively evaluate the corporate image of Weinian Company, which should be considered as intentional to damage the business reputation of Weinian Company. Therefore, Erxi Company and Yang Ziyu's issuance or forwarding of the Statement involved in the case constitutes fabrication and dissemination of false information or misleading information.

　　(2) Can the sued behavior lead to the consequence of damaging the business reputation of Weinian Company

　　Weinian claimed that the sued behaviors of Erxi Company and Yang Ziyu had damaged the business reputation of Weinian Company and caused a reduction in the social evaluation of Weinian Company by the relevant public. Erxi Company and Yang Ziyu argued that the Statement involved in the case did not cause adverse effects such as investment reduction and project termination, whether the goodwill was damaged was not the same concept as the degree of discussion, and from the perspective of hot search topics, the cause of concern was the dispute between Weinian Company and outsiders.

　　The court of first instance held that business reputation and service reputation generally refer to the impression of the public on the operator, including the cognition of business factors such as business ability, credit status, quality of goods and services, and the overall evaluation of the operator. Good reputation can bring economic benefits and competitive advantages to operators. In this case, Erxi Company and Yang Ziyu are specialized in the business operation of Internet celebrities, and have more public attention. They have more ways and means to publish opinions on the Internet, and their stated views are more likely to attract the attention of the relevant public and cause a wide range of communication. At the same time, Erxi Company, as the holding subsidiary of Weinian Company, Yang Ziyu, as the legal representative of Erxi Company and once served as the vice president of business of Weinian Company, has a close relationship with Weinian Company and many network celebrities, and his views expressed and forwarded have a great impact on the relevant public. Therefore, when Erxi Company and Yang Ziyu release and disseminate relevant remarks about Weinian Company, they should be based on comprehensive and sufficient facts, and should bear a higher duty of care. However, when Erxi Company and Yang Ziyu released and disseminated the Statement involved in the case, they did not hold any relevant evidence that could support their opinions and statements, and did not state true and accurate information based on objective facts. The business operation of online celebrities is an important business of Weinian Company. The business income is an important part of Weinian Company's daily revenue. Its corporate image and trust and cooperation with online celebrities are its core competitiveness. The Statement involved in the case reduces the trust of online celebrities in Weinian Company, which will affect the rational decision of online celebrities to choose business service partners, and at the same time, it will also cause misunderstanding among the relevant public, Negative evaluation of Weinian Company damaged its business reputation, gained its own competitive advantage while damaging its competitive advantage, improperly disrupted the market competition order, and damaged its legitimate rights and interests.

　　With regard to the defense opinion that the Statement involved in the case did not cause adverse effects such as investment reduction and project termination, and whether the goodwill was damaged was not the same concept as the degree of discussion, the court of first instance held that the criteria for judging the damage to the competitor's business reputation and service reputation should be whether the sued infringement is enough to cause misunderstanding of the relevant public and whether it has caused damage to the competitor, It is not only based on whether it directly caused the actual investment reduction and project termination as the judgment of damage consequences, so the defense opinion is not adopted.

　　In terms of the hot search topic put forward by Erxi Company and Yang Ziyu, the reason for the high degree of attention is the defense opinion of the dispute between Weinian Company and Li Ziqi, an outsider. The court of first instance held that the direct cause of the damage to the business reputation of Weinian Company was the release and dissemination of the Statement involved in the case, and from the public discussion, there were a lot of negative comments on Weinian Company due to the Statement involved in the case, In addition, the non case factors mentioned by Erxi Company and Yang Ziyu already existed when they issued and disseminated the Statement involved in the case. Erxi Company and Yang Ziyu should be aware of the possible negative impact on Weinian Company caused by the issuance and dissemination of the Statement involved in the case, so they did not accept this defense.

　　To sum up, Erxi Company and Yang Ziyu, as competitors in the same industry, released and disseminated the Statement involved in the case on the Internet without any factual basis, which damaged the business reputation of Weinian Company. It belongs to fabricating and disseminating false or misleading information, which should be considered as constituting commercial defamation.

　　3、 How Erxi Company and Yang Ziyu Should Bear Tort Liability

　　According to Article 17 of the Anti Unfair Competition Law, operators who violate this Law and cause damage to others shall bear civil liability according to law.

　　Weinian Company claims that Erxi Company and Yang Ziyu should bear civil liability for joint infringement. Erxi Company and Yang Ziyu argued that the content of the Statement issued by Yang Ziyu was forwarded, which was the same as the content of the Statement involved in the case. Yang Ziyu, as the executive director of Erxi Company, was sued as an act of duty and should not be personally liable. The court of first instance held that, according to the provisions of Article 1191 of the Civil Code of the People's Republic of China, if an employee of an employing unit causes damage to others due to the performance of his work tasks, the employing unit shall bear the liability for tort. In this case, Yang Ziyu is the legal representative of Erxi Company, holding 49% shares in Erxi Company and serving as the executive director and general manager. Yang Ziyu's microblog account authentication information is shown as "CEO of Hangzhou Erxi Culture Media Co., Ltd.", which forwarded