Original title: iqiyi cut the membership rights and interests, and was sentenced to breach of contract in the final judgment! Provide dozens of popular apps in court to “testify”
Source: China consumer daily
Iqiyi has been on demand for more than a year, and the final judgment of the defendant case has come to maintain the original judgment.
On June 2 this year, the Beijing Internet court adjudicated on the case of member v. iqiyi’s advanced VOD case. The verdict triggered heated discussion among netizens and was swept up by hot search.
1. VIP users query the breach of “pay ahead of demand” and the membership agreement has been unilaterally changed
It has to start on June 19, 2019.
On the same day, Wu Shengwei, a lawyer from Shanghai zhengce law firm, paid to become a VIP member of iqiyi gold (365 day old member) for the membership privilege of “free from advertising and automatically skipping the opening advertisement”.
In December 2019, when Wu Shengwei used gold VIP members to watch iqiyi’s hit drama “celebrate more than a year”, he found that he still needed to watch “member exclusive advertisement” before the play, and he had to click “skip” to continue watching the film.
At the same time, iqiyi company, based on the VIP members’ right to “watch hot dramas first”, provides VIP members who are willing to pay the fee with the opportunity to watch the TV series in advance on the basis of VIP members’ original viewing rights.
Wu Shengwei also found that the content of iqiyi VIP member service agreement has been unilaterally changed by iqiyi company. He believes that the breach of the service mode of “pay ahead of demand” infringes on the rights and interests of its golden VIP members in a disguised form, and that the “VIP Member Agreement” has many violations of the standard terms of the contract law, which should be invalid.
Wu Shengwei filed a lawsuit with the Beijing Internet court, demanding that iqiyi’s “pay ahead of demand” clause be invalid, and restore the golden VIP membership rights of “advertising free, automatically skipping the title ads”.
2. The court of first instance held that “pay ahead of demand” cuts the rights and interests of “golden VIP members”
The first instance of the Beijing Internet court held that the “membership” service mode based on the consumption intention of the video platform relying on Internet technology has been accepted by the public. On this basis, it is not inappropriate to explore new ways of video scheduling and broadcasting by digging into the needs, fitting users, and promoting differentiated and adaptive personalized services.
However, the court held that part of iqiyi’s “VIP Member Agreement” violates the mandatory provisions on the effectiveness of standard terms in Article 40 of the contract law, which is therefore invalid. According to the terms of unilateral modification of the contract, iqiyi platform launched the “pay ahead of demand” service in the broadcasting process of the TV series involved in the case, which is the cutting off of the integrity of the members’ rights and interests of “hot drama preemptive watching”, which damages the rights and interests of gold VIP members in advance.
On June 2, 2020, iqiyi was sued in the case of “pay ahead of demand”. It was ruled that iqiyi’s VIP member service agreement of iqiyi company was partially invalid; the updated “pay ahead of demand” clause after the plaintiff Wu Shengwei purchased the member service had no effect on it; iqiyi company provided the plaintiff Wu Shengwei with the rights and interests of “golden VIP members” of iqiyi platform for 15 consecutive days Wu Shengwei has the right to watch popular TV series and iqiyi’s high-quality homemade drama with updated platform, and compensate Wu Shengwei for the loss of notarization fee of 1500 yuan.
The verdict triggered heated discussion among netizens. Some netizens believe that the core problem is not charging but temporary charging; some netizens said that the platform should not play word games to “harvest” consumers.
3. Whether the introduction clause is invalid or not, the court of second instance held that iqiyi excluded the application of mandatory provisions of law through the form of standard clauses. The intention of this arrangement to restrict or even exclude the rights of consumers is obvious, which belongs to unfair and unreasonable provisions to consumers
Iqiyi appealed against the judgment of the first instance.
Whether the following “Introduction” clauses of user agreement are valid or not is the focus of dispute between both parties:
“Both parties agree that the above exemption and limitation of liability clauses do not belong to the” provisions of exempting its liability, increasing the other party’s responsibility and excluding the other party’s main rights “stipulated in Article 40 of the contract law (hereinafter referred to as the contract law), that is, both you and iqiyi recognize the legality and validity of the above-mentioned provisions, and you will not claim that the terms in the agreement are not based on iqiyi’s failure to fulfill the obligation of reasonable prompt Or invalid. ”
The court held that if there are special provisions on standard terms in the law on the protection of consumers’ rights and interests, such special provisions should be applied. Based on the consideration of being beneficial to the protection of consumers, the law on the protection of consumers’ rights and interests has made special provisions on the invalidity of standard terms, that is, “excluding or limiting the rights of consumers, reducing or exempting operators’ responsibilities, and increasing consumption” exist in the standard terms The unfair and unreasonable provisions on consumers, such as the liability of consumers, shall be deemed invalid.
The provider of the standard contract drafted by the introduction clause of iqiyi has fulfilled the obligation of presentment, and has agreed to exclude the application of Article 40 of the contract law which is legally invalid. Its intention is to exclude the application of the mandatory provisions of the law through the form of standard terms. The intention of this arrangement is to restrict or even exclude the rights of consumers, which is unfair and unreasonable to consumers It should be regarded as invalid.
4. Iqiyi added “pay ahead of demand” clause, and the court of second instance ruled that it was in breach of contract
Iqiyi company’s addition of the “pay ahead of demand” clause is a change to the format contract. The “pay ahead on demand” clause gives golden VIP members the right to pay in advance to watch the series. This change in essence classifies the golden VIP members in disguise. Wu Shengwei’s “no need to wait for snail like update speed. When others are still waiting for the update, you have finished watching it The rights and interests of “finale” are changed to “the rights to watch the series faster through extra payment”.
A screenshot of the evidence provided by Wu Shengwei
This change in essence detracts from the existing rights of gold VIP members. Therefore, the “pay ahead of demand” clause limits Wu Shengwei’s rights, which is unfair and unreasonable for Wu Shengwei. Therefore, the “pay ahead of demand” clause should not be included in the adjustment scope of unilateral change clause.
The court of second instance pointed out that the Internet service provider, as the provider of format contract, can formulate unilateral modification terms in accordance with the law, but the exercise of the right of unilateral change should be based on improving user experience and adapting to technological innovation to achieve win-win between Internet service providers and users, rather than limiting or reducing the substantive rights and interests of users.
5. Iqiyi company advocates that continuing to use the service is deemed as consent. It also lists the terms of member or user service agreement and popular website service agreement of dozens of popular apps on the basis of industry practice
Iqiyi claims that Wu Shengwei’s continued use of gold VIP member services should be regarded as his agreement that the “pay ahead of demand” clause is a change to the contract.
In this regard, the court of second instance held that iqiyi did not provide relief channels such as refund of VIP membership fee to terminate the contract when gold VIP members did not agree to the “pay ahead of demand” service. In other words, the above provisions agreed that the right to terminate the contract could be exercised if they did not agree to change. However, it did not provide an effective way to exercise the right of rescission. Therefore, this agreement belongs to the content of contract change If it is not clear, it should be presumed that it has not been changed.
China consumer daily learned that in the process of the first and second instance, iqiyi stressed that the “VIP member agreement involved in the case” was in line with the characteristics of network services and industry practices, and listed dozens of popular app member or user service agreements or popular website service agreement terms for corroboration.
The court of second instance held that convention is a kind of economical, legal and legal behavior mode. Only when it conforms to the convenient and legal practice can it have legal effect. Therefore, whether the “VIP member agreement involved in the case” conforms to the characteristics of network services and forms the industry practice, is not based on the existing and much used as the judgment criteria, but should be in line with the legal provisions, safeguarding the legitimate rights and interests of all stakeholders, having industry consistency and in line with the development direction of the industry.
A screenshot of the verdict
On December 9, 2020, the court of second instance made a final judgment, rejected the appeal and upheld the original judgment.
6. Lawyer Wu Shengwei thinks that the delay of the judgment today means that all users who opened members before the advance on demand in December last year have expired, and they can no longer copy his winning judgment
“Although iqiyi’s second trial has not been overturned, their purpose has been achieved by delaying the judgment to take effect today, because from today on, all users who have opened up members before advance on demand have expired, and you can no longer copy my winning judgment.” Wu Shengwei said in an interview with China consumer daily on December 15.
Wu Shengwei analyzed that in June this year, if iqiyi did not appeal and the first instance judgment took effect, it would mean that hundreds of millions of member users could copy my lawsuit and get the same judgment. Iqiyi does not allow such a thing to happen. The only way is to appeal. Even if we lose, we should postpone the time when the judgment takes effect.
“In the process of litigation, iqiyi did provide compensation mediation scheme, but in the end I chose the original intention. Maybe that’s what I’m suing. The profession of a lawyer is enough to bring me enough income to satisfy my life. This unexpected income does not belong to me. ” Wu said.