After Tencent video and iqiyi launched the “advance on demand” service for the TV drama “Qingnian Nian” last year, the legal bloggers “Wu Shengwei WSW” and “logos logics” (real name Lin Jian) sued Beijing iqiyi Technology Co., Ltd. and Shenzhen Tencent computer system Co., Ltd. (hereinafter referred to as “Tencent”) for breach of contract and fraud, respectively.
Following Wu Shengwei’s victory in the first instance, the lawsuit between Lin Jian and Tencent has also received the first instance judgment of Nanshan District People’s Court of Shenzhen. The court ruled that Tencent’s standard terms were invalid, and the contract change of “pay in advance on demand” was not effective for Lin, but the plaintiff’s claim that Tencent had fraud was not supported by the court. Lin will add that he will consider some evidence.
It should be noted that the judgments in these two cases are only valid for the plaintiff. If other members of Tencent video and iqiyi think that the “advance on demand” mode infringes on their own rights or has problems, they need to sue separately.
The court ruled that Tencent’s standard terms were invalid and “advance demand” was not effective for the plaintiff
According to Lin Jian’s self-report, he bought Tencent’s super VIP members earlier, but he still had to pay extra for “advance on demand” when watching the TV series “more than one year”. He believed that Tencent had false propaganda.
In this case, Lin Jian questioned two terms of the service agreement for VIP members of Tencent super film and television: a standard clause was set up in the beginning and introduction of the agreement, which agreed that other standard terms in the agreement were not the standard terms in the contract law; at the same time, article 1.7 (Note 1) of the agreement agreed that Tencent can unilaterally change the content of the contract if the consumer If you do not agree with the change, you can stop using it. Once you continue to use it, you will be deemed to agree with the change.
According to the judgment, in view of the first point, the court held that the dispute clause in the agreement excluded the application of the standard terms in the contract law by agreement, which belonged to the situation of “violating the mandatory provisions of laws and administrative regulations”, and should be recognized as invalid provisions according to law.
In view of whether the continued use is regarded as the change of the user’s identity contract, the court held that Tencent had not launched the mode of “pay in advance on demand” when the plaintiff became a member of “Tencent super movie VIP”. After both parties signed the “Tencent super film and television VIP member service agreement”, Tencent added article 3.11.2 (2) to the agreement, and added “advance payment on demand” for members, so that the plaintiff can not watch all the updated episodes when purchasing the “Tencent super movie VIP” member service, which has an impact on its rights.
Therefore, Tencent should remind or publicize to the plaintiff when adding terms, and give the plaintiff the right to stop using “Tencent Super Video VIP” member service when the plaintiff disagrees with the clause. The court held that Tencent did not provide evidence to prove how the plaintiff could stop using the service and refund when it disagreed with the revised content. In fact, the plaintiff could not stop using “Tencent Super Video VIP”, which should be regarded as the contract has not been changed, that is, article 3.11.2 (2) has no effect on the plaintiff.
Finally, the Court confirmed that “both parties confirm that the above-mentioned terms are not the provisions of” exempting the other party’s liability, increasing the other party’s liability and excluding the other party’s main rights “in the preamble and introduction of the” Tencent super film and television VIP member service agreement “, and agreed that the legality and validity of the clause were invalid, and decided that Tencent should pay compensation Compensation for Lin Jian’s economic loss of 1500 yuan (notarization fee); rejection of Lin Jian’s other claims.
Lin Jian explained that the court’s decision meant that the contract change of “pay in advance on demand” would not be effective for itself, and Tencent needed to change the version of the contract. However, the judgment can not be effective on other Tencent video members, and other members can sue separately if they want.
The court held that Tencent’s fraud was not established, and the plaintiff considered the appeal
In addition to his objection to the terms of the membership agreement, Lin Jian also claimed that Tencent had fraud in the process of providing services and should have punitive damages. The price he paid for the membership was 268 yuan, and the compensation amount should be calculated according to three times, totaling 804 yuan. However, the court of first instance held that Tencent did not have fraud and did not support its claim.
According to Lin Jian, Tencent advertised that “hot dramas will be updated ahead of time, and the completed works will be watched at one breath!” Constitute fraud. The Court pointed out that the evidence submitted by the plaintiff showed that during December 2019, the plaintiff could not watch the full episode of the TV drama “Qingnian Nian” because the TV series had not been updated. However, the evidence provided by Tencent showed that after the “Qingnian” was updated, the “Tencent Super Video VIP” members could watch all the episodes. Therefore, Tencent’s service content and publicity content are consistent.
At the same time, the court held that Tencent’s launch of the “pay in advance on demand” mode was an adjustment of its scope of authority. Although Tencent did not reach an agreement with the plaintiff in the process of launching the “pay in advance on demand” mode, it informed users of the content and layout rules of “pay in advance on demand” service through various channels when launching the mode, and there was no notification to the plaintiff The act of concealing the true or false information.
In response to the court’s decision, Lin Jian said, “I will consider appealing to further prove that Tencent video has fraud (that is, the publicity can watch the complete works and watch them in advance, but actually they need to pay extra)
The above-mentioned case of Wu Shengwei suing iqiyi for “advanced on demand” has published the results of the first trial in June this year. In the first instance, Beijing Internet court held that iqiyi’s breach of contract infringed on the rights and interests of users’ golden VIP members, ruled that its format terms were invalid, and “advance demand” had no effect on Wu Shengwei, and ordered iqiyi to pay Wu Shengwei 1500 yuan. Iqiyi has not made any public progress in appealing against the judgment of the first trial.
Beijing Internet court held that iqiyi company’s “pay ahead of demand” service within the scope of satellite TV’s hot TV dramas and iqiyi’s high-quality homemade dramas has violated the agreement between iqiyi and Wu Shengwei on “hot drama preemption”, and should bear the responsibility of continuing to perform and compensate for the losses.
At the same time, iqiyi company did not provide VIP members with an effective channel to terminate the contract and refund the VIP membership fee in the “VIP member agreement involved in the case”. As a result, even if the members do not agree with the changed contents, their right to terminate the VIP member agreement is in vain, which constitutes a substantial damage to the rights of VIP members.
The so-called members “continue to use iqiyi platform, as they have agreed to change the content”, due to the lack of substantive justice, can not be regarded as a change agreed by both parties. Similarly, when the user logs in to iqiyi platform, the user’s behavior of logging in can not be regarded as agreeing to the VIP Member Agreement and its changes under the user agreement link. The user’s consent is still subject to express consent.
The Court pointed out that the mode of “advance on demand” is not improper in itself, but should not damage the existing rights and interests of members. “When iqiyi continues to launch new service models, the maximization of its platform benefits should be based on compliance with legal provisions.”
After that, Wu Shengwei checked and disclosed his login and film viewing records as a member of iqiyi without authorization in the litigation process of the “advanced on demand” case, and sued iqiyi again, claiming that the latter seriously violated his personal privacy.
Wu Shengwei once said that iqiyi did not fulfill the complete obligation to inform users of their rights and did not provide users with the right to choose voluntarily when modifying the agreement. “These two points are actually very obvious in many platforms, including Tencent video, Youku, and mango, which are actually the same.”.
Tencent video super movie VIP Member Service Agreement [first part and introduction] (this version is updated on January 10, 2020) 1.7 [agreement modification]