Commercialisation of personality rights and how to protect them

Driven by fan base popularity, live-streaming, short videos and other trending new business forms in the fast developing age of the internet economy have proven prosperous for the entertainment industry. For public figures, the value and commercial potential of their personality rights have never been greater. With the economic value of “personality” such as personal images, names and even privacy being increasingly exploited in various ways, personality rights are being commercialised at an alarming rate.

Unsurprisingly, however, disputes over personality rights are corresponding soaring. In 2019, courts nationwide tried a total of 177,135 cases of personality right disputes, up by nearly 10 times compared to a decade prior. In 2021, courts nationwide accepted 192,675 first-instance personality rights cases, an increase of 19.2% year-on-year.

Among them, disputes over moral rights such as right of reputation, right of likeness and right of name all saw marked increases year-on-year. According to the latest data, from 1 January 2021 to 30 November 2022, a total of 330,000 personality right disputes were decided in court.

Legal basis

Although China has not yet enacted separate legislation to protect personality rights, it has made great strides in the area, benefitting from adjudicating the sheer volume of cases in recent years.

To practitioners, the separate section in the Civil Code dedicated to personality rights was undoubtedly music to their ears, mainly covering the following aspects.

(1) Clarified for the first time the definition of “likeness”, deleted constitutive requirements of “profit-oriented”, and expanded protection of the right of likeness;

(2) Clarified the legal basis to protect celebrities’ voices, based on which actor Sun Honglei recently emerged victorious in China’s first dispute over voice rights in TV dramas;

(3) Pseudonyms, stage names and translated names of certain social popularity can form the right of name, with the connotation of the right of name expanded;

(4) Personality rights may not be waived, transferred or inherited, which settled the attribution of celebrities’ “stage names”, realising their “personal freedom”;

(5) Clarified that no one shall intrude upon another’s private life through phone calls or texting, nor shall enter, photograph or spy on others’ residence, hotel rooms and other private spaces.

Protection of public figures’ privacy has also been enhanced, with those who improperly obtain the itinerary of a public figure now suspected of violating privacy. In addition, the Supreme People’s Court’s Provisions on Several Issues Concerning the Application of Law in the Trial of Cases Involving Civil Disputes over Infringements upon Personal Rights and Interests through Information Networks, along with the Interpretation on Issues Regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts, provide further legal basis for protection of personality rights.

Remedies

When personality rights are violated, there are three routes of remedy: civil, administrative and criminal, the selection of which should be based on the individual situation.

Civil remedies. According to the Civil Code, if personality rights are violated, the right holder has the right to request the people’s court to order the violator to cease infringement, eliminate adverse effects, make a formal apology and compensate for losses, which mainly include property and moral losses.

Administrative remedies. Article 42 of the Public Security Administration Punishments Law stipulates that anyone who commits intimidation, public insult, fabricated slander, false accusation, threat, sending obscene messages, peeping into, sneaking photos, wiretapping, or spreading the privacy of others shall be detained for not more than 10 days and be fined. Authorities are exerting a firmer grip on this issue.

Criminal remedies. In this area, the main applicable criminal law charges are insult, defamation, and violation of citizens’ personal information. However, the filing of criminal cases or private prosecutions exerts high demand on evidence, and professional consultation is recommended.

All of the above-mentioned remedies request judicial intervention. In view of the compensation and infringement impact in such cases, winning is often not the ultimate goal of the right holder. Generally, their more urgent concerns centre on cessation of infringement and elimination of effects, with compensation for damages taking second place.

For example, in an infringement case of privacy leakage, if the right holder starts a suit or reports to the judicial authorities, the legal procedures are likely to cause even greater spread of information or attract unnecessary attention. Even if the case is ultimately won, this goes against the right holder’s intention, and may result in greater losses. Alternatives such as negotiation and communication with the information dissemination platform may be favourable.

Pursuant to articles 1194-1197 of the Civil Code, online platforms, as third parties, are obliged to observe a “notify and delete” rule, and guarantee non-infringement of user-created content. If the platform fails to take necessary, timely measures after being notified of an infringement, it bears joint and several liability with the infringer for expanded damage.

If the platform becomes aware of any usage of its network service to infringe upon rights and interests but fails to take necessary measures, it bears joint and several liability with the infringer.

According to guidelines for complaints of infringement of Douyin, China’s TikTok counterpart, the right holder must submit to the platform proof of identity and qualification, the infringing content, and the complaint claims. The platform usually verifies and deals with the matter within seven days to cease infringement and eliminate effects.

Final thoughts

With legislative improvements and a nationwide campaign to purify the online environment in view of the rapid speed that information spreads online, disputes over personality rights and protective measures should be emphasised. To achieve the desired results, rights holders should make rational judgements, from carefully considered analysis to choosing the solution that suits them best.

From a macro point of view, only when the public raises its awareness of rights protection, proactively resists and reports online infringements, and actively safeguards the lawful rights and interests of the nation, community and individuals, can we further improve and create a healthy online environment.

Huang Xiaoyuan is a founding partner at Lianggao Law Firm. He can be contacted at +86 130 5237 0383 or by e-mail at xiaoyuan.huang@shlglawyer.com.
Zhou Keyu is a associate at Lianggao Law Firm. She can be contacted at +86 157 1113 1105 or by e-mail at keyu.zhou@shlglawyer.com.