User sues Tencent Video for paid advance on-demand case verdict at first instance
Recently, the People’s Court of Nanshan District, Shenzhen, Guangdong Province (hereinafter referred to as Nanshan Court) made a first-instance judgment on the case of user Lin Mou suing Tencent Video for advance on-demand broadcasting due to membership fees, and determined the "Tencent Super Movies VIP Member Service Agreement" (hereinafter referred to as the "Agreement" ) The exemption clauses in the radical and introduction are invalid, and Tencent shall compensate Lin Mou for economic losses of 1,500 yuan.
However, the court pointed out in the first-instance judgment that Tencent Video’s addition of an "advanced pay-on-demand" model to its membership system is an adjustment to its business model within its scope of authority. The business model itself is not inappropriate. In addition, Tencent Video made it clear in its publicity that VIP members of Super Movies and TV can watch all episodes of VIP hot dramas that have been updated. There is no false publicity, and the existing rights and interests of members are not harmed. The plaintiff’s other claims were rejected.
"Celebrating Yu Nian" lead controversy
When the hot web drama "Celebrating the New Year" was broadcast last year, iQiyi and Tencent Video were controversial for their launch of an "advanced on-demand" model. In December 2019, the plaintiff Lin sued Tencent Video, arguing that multiple clauses under the "Agreement" were invalid and claimed for economic losses of 10,000 yuan. It is reported that the radicals and introduction of the "Agreement" stipulate: "The parties confirm that the foregoing clauses are not included in the clauses of'exempting the other party from liability, increasing the other party's liability, and excluding the other party's main rights' stipulated in Article 40 of the Contract Law, and agree to the legality of this clause. Sex and effectiveness".
The Nanshan Court held that all the clauses in the "Agreement" comply with the provisions of Article 39, Paragraph 2 of the Contract Law. They are all standard clauses. The dispute clauses in the radical and introduction of the "Agreement" are excluded by agreement. The application of Article 10 falls within the “violation of the mandatory provisions of laws and administrative regulations” as stipulated in Item (5) of Article 52 of the Contract Law, and shall be deemed invalid.
Super VIP does not mean avoiding watching any ads
The plaintiff believes that VIP members who bought Super Movies and TV will also need to watch other forms of advertisements, and also need to spend money to watch advanced on-demand dramas, and Tencent video platform updates the "Agreement" according to legal regulations or other needs, and adds the "advanced pay on demand" model. The behavior is inconsistent with the member service claimed by "Tencent Super Movie VIP", and the provisions of Article 1.7, Article 3.11.2(2), and the latter half of Article 3.5.2 involved in the "Agreement" are invalid.
The court held that in the process of providing long-term services, it was a reasonable need for the defendant to make timely changes to the service agreement provided in order to adapt to the rapidly changing Internet development needs. In view of the large number of users that the defendant provides services, it is neither realistic nor necessary to require the defendant to negotiate with a large number of users on the change clauses when making changes to the service agreement. Therefore, it is reasonable and necessary for the defendant to change the terms of the service agreement by agreeing with the user in advance. Moreover, when the defendant provided the service agreement, it was shown in bold and bold to draw the attention of the other party. The plaintiff claimed that Article 1.7 of the service agreement was invalid and lacked legal basis.
Regarding the problem that the plaintiff pointed out that the VIP of Super Movies and TV also depends on advertisements, the court held that in addition to the use of icons, the defendant also explained in multiple texts that “open Tencent Video VIP to become a member, and some advertising members can close (including pre-roll advertisements). , Targeted recommendation content, etc.)", "Some copyright owners have special requirements for movies or TV series, and may still provide you with different types of advertising services. Please understand." This does not harm the public interest and does not violate the mandatory provisions of laws and administrative regulations Situation.
The court found that the "advance pay on demand" model is reasonable
As for the video platform’s addition of an "advanced pay-on-demand" model to the membership system, the court held that it was an adjustment to its business model within the scope of its authority, and that it did not harm the public interest of the society and violated laws and administrative regulations. In the case of sexual provisions, there is no other invalidity provided by law.
Before the user sued the iqiyi case, the Beijing Internet Court held that the "advanced on-demand" model itself was not wrong, but it could not harm the existing rights of members.
Xue Jun, a professor at Peking University Law School, said that advanced on-demand is a new business model. Video websites provide users with special and additional services and charge appropriate fees again. Consumers can get some additional services beyond ordinary members. The advantage of this is to meet the needs of some users with special needs and willingness to pay extra. Doing so does not violate the inherent interest structure of the contract, and has its rationality.
Since Tencent Video has provided clear instructions on membership rights, advanced on-demand rules, scheduling progress, and new paid prices through APP, website, official Weibo, official WeChat, SNS promotion, market materials, etc., it is enough to make users clear Understanding its precise meaning, the court recognized that the paid advance on-demand content in Article 3.11 2 (2) of the agreement is valid. However, since the plaintiff was not provided with methods to stop service use and refund, this clause was not effective for the plaintiff. The plaintiff can continue to use the "Tencent Super Movie VIP" membership service.
Global Law Firm partner Mu Ying believes that consumers can independently choose new services and have a foresight of the services they will receive at the price of payment. The advanced on-demand business model generally has a positive impact on the competition and development of the entire video market, which is conducive to improving the loss of video websites, better meeting user needs, and prompting the industry to produce more optimized content.
