Market supervision bureaus (departments and commissions) of all provinces, autonomous regions, municipalities directly under the Central Government and Xinjiang Production and Construction Corps:
In order to strengthen the supervision of online live streaming marketing activities, protect the legitimate rights and interests of consumers, and promote the healthy development of live streaming marketing industry, in accordance with relevant laws, administrative regulations and the duties of market supervision departments, the following opinions are hereby put forward.
I. General Requirements
Guided by Xi Jinping’s socialist ideology with China’s characteristics in the new era, to fully implement the spirit of the 19th National Congress of the Communist Party of China and the 2nd, 3rd, 4th, and 5th Plenary Sessions of the 19th National Congress of the Communist Party of China, earnestly implement the decisions and instructions of the Party Central Committee and the State Council, and conduct administration activities in accordance with law, with open-minded and prudence, with respect to innovative regulatory concepts, to actively explore regulatory methods that adapt to the characteristics of new business formats and are conducive to fair competition among various market players, and investigate and punish illegal activities such as infringements of consumers’ legitimate rights and interests, infringement of intellectual property rights, and disruption of market order in online live marketing activities to promote the healthy development of webcast marketing, and create a fair and orderly competitive environment and a safe and secure consumer environment.
II. Consolidate Legal Responsibilities of Relevant Entities
- Consolidate legal responsibilities of the online platform.
Where the online platforms provide services such as online business premises, transaction matching, and information dissemination for operators that sell goods or provide services by means of live streaming, for two or more parties to independently carry out trading activities, especially those who provide streaming promotion services on online platforms for operators [sellers] to use, or provide live streaming technical services for operators [sellers] to promote goods or services, the online platforms shall comply with the responsibilities and duties of e-commerce platform operators stipulated by the E-Commerce Law.
Where the online platforms provide paid services for commodity operators [sellers] (including service providers, as below) or streamers, publicize and promote live streaming marketing activities, which constitute commercial advertising, they shall comply with the responsibilities and duties of advertisements publishers or advertisement operators stipulated by the Advertising Law.
Where the online platforms provide their users with technical services for streaming in other ways, to determine whether the relevant responsibilities and duties of e-commerce platform operators under the E-Commerce Law shall be applied, or the responsibilities and duties of network service providers provided by law and regulations shall be applied, specific circumstances shall be considered, such as whether the platform is involved in operation and commissioning, and whether the platform exercises control over users.
- Consolidate the legal responsibilities of commodity operators [sellers]. Those who sell goods or provide services through live steaming shall comply with the E-commerce Law, the Consumer Rights Protection Law, the Anti-Unfair Competition Law, the Product Quality Law, the Food Safety Law, the Advertising Law, the Price Law, the Trademark Law, and the Patent Law, etc., and fulfil corresponding responsibilities and duties.
- Consolidate the legal responsibilities of streamers. Natural persons, legal persons or other organizations that use live streaming to publicize the performance, functions, quality, sales status, users reviews, and previous honors of goods or services shall be truthful and legal, and comply with the relevant provisions of the Anti-Unfair Competition Law. Where live streaming content constitutes a commercial advertisement, the responsibilities and duties of the advertisement publisher, advertisement operator or advertisement endorser shall be fulfilled in accordance with the provisions of the Advertising Law.
III. Strictly Regulate Online Live Streaming Marketing Conduct
- Regulate the marketing scope of goods or services.
Commodity operators who sell commodities or provide services through live streaming shall abide by relevant laws and regulations and establish and implement a mechanism of commodity inspection and acceptance. They shall not through streaming sell goods or services that are prohibited by laws and regulations from being produced or sold; they shall not through streaming publish commercial advertisements that are prohibited by laws and regulations from being published on mass media; they shall not through streaming sell goods or services that are prohibited from online trading.
- Regulate the review and publication of advertisements.
When publishing online live streaming marketing activities, advertisements that are subject to pre-release review required by laws and administrative regulations shall strictly abide by relevant provisions regarding advertising review. Absent review, advertisements that require pre-publishing review shall not be published by laws and administrative regulations such as medical treatment, drugs, medical devices, pesticides, veterinary drugs, health foods, and formula foods for special medical purposes.
- Protect consumers’ right to know and to choose.
Commodity operators who sell goods or services through live streaming shall continuously publicize their business license information and administrative licensing information related to their business operations in a prominent position on the homepage of their online store, and provide consumers with business addresses, contact information, after-sales service information, etc. Network platforms shall provide technical support and other facilitating conditions for publicizing the above-mentioned information.
IV. Investigate and Punish Illegal Acts of Webcast Marketing in Accordance with the Law
- Investigate and punish illegal e-commerce activities in accordance with the law.
In response to the inadequate implementation of platform responsibilities in live streaming marketing, in accordance with the E-Commerce Law, [we shall] focus on investigating and punishing unauthorized deletion of consumer reviews, failure to take necessary measures against platform operators infringing on consumers’ legitimate rights and interests, failure to comply with obligations for qualification review and the protection of consumers, and other illegal acts.
- Investigate and punish violations of the legitimate rights and interests of consumers in accordance with the law.
In response to problems such as ineffective after-sales service guarantees in live streaming marketing, in accordance with the Consumer Rights Protection Law, focus on investigating and punishing violations regarding repairs, redo, replacements, returns, replenishment of the quantity of goods, refund of payments and service fees, and delays or unreasonable refusal of requests for compensation for losses.
- Investigate and punish illegal acts of unfair competition in accordance with the law.
Regarding unfair competition issues such as fictitious transactions or evaluations in streaming marketing, deceiving and misleading consumers by streamers, etc., in accordance with the Anti-Unfair Competition Law, [we shall] focus on investigating and punishing false or misleading commercial promotions, [those who] assist other operators to carry out false or misleading commercial promotion, counterfeiting and confusion, commercial slander, and illegal rewarded sales and other illegal activities.
- Investigate and punish violations of product quality in accordance with the law.
Regarding the sales of counterfeit and inferior products in live streaming marketing, in accordance with the Product Quality Law, [we shall] focus on investigating and punishing adulteration of impurity or fake products, selling fake and shoddy products as genuine, selling inferior products as qualified products, forging or fraudulently using the factory names and addresses of other parties, and other illegal activities.
- Investigate and deal with violations of intellectual property rights in accordance with the law.
Regarding the sales of products that infringe intellectual property rights in live streaming marketing, in accordance with the Trademark Law and the Patent Law, [we shall] focus on investigating and punishing infringement of exclusive rights of a registered trademark, counterfeiting patents, and other illegal activities.
- Investigate and deal with food safety violations in accordance with the law.
Regarding food safety issues in live streaming marketing, in accordance with the Food Safety Law, [we shall] focus on the investigation and punishment of unqualified sales of food, sales of foods that do not meet food safety standards, and sales of foods with false production dates or expiry dates.
- Investigate and punish advertising violations in accordance with the law.
Regarding the problem of false and illegal advertisements in live streaming marketing, in accordance with the Advertising Law, [we shall] focus on investigating and punishing publishing false advertisements, publishing illegal advertisements that violate social norms, and illegal advertising endorsements.
- Investigate and punish illegal pricing in accordance with the law.
Regarding the problem of illegal pricing in live streaming marketing, in accordance with the Price Law, [we shall] focus on investigating and punishing illegal acts such as price bidding, using false or misleading pricing methods to lure consumers into transactions.
Local market supervision departments shall attach great importance to the supervision of live streaming marketing activities, strengthen organizational leadership, give full play to the advantages of comprehensive law enforcement, and effectively improve the supervision efficiency and level of webcast marketing activities. It is necessary to strengthen communication and collaboration with the cybersecurity and informatization, public security, radio and television departments, strengthen information sharing, coordination and cooperation, and enhance supervision and coordination. It is necessary to earnestly increase the intensity of case investigation and do a good job in the connection of executions, and if an illegal act is found to be a crime, the case should be promptly transferred to the judicial organ.
State Administration of Market Regulation.
November 5, 2020
Translation by SIPS.
Original Chinese version available at: http://gkml.samr.gov.cn/nsjg/ggjgs/202011/t20201106_323092.html