Joyce Wen
On November 5, 2020, the State Administration for Market Supervision issued the Guiding Opinions on Strengthening the Regulation of Marketing Activities in Online Streams (the “Opinions”). The Opinions aim to strengthen the regulation over marketing activities in online streams and protect the rights and interests of consumers so as to promote the healthy development of this new form of livestream marketing. The Opinions mainly clarifies the following three aspects:
1. Strengthening the legal responsibilities of the relevant entities
For online platforms, the e-commerce platform responsibilities and obligations of a streaming platform are stipulated with respect to its jump into traditional e-commerce through marketing livestreams. For an online platform that provides paid streaming services which constitutes commercial advertising, it should assume the responsibilities and obligations of an advertisement publisher or operator. For merchandise operators, the merchandise or services provided in a livestream shall meet with the relevant responsibilities and obligations in the Electronic Commerce Law, Law on the Protection of Consumer Rights and Interests, Anti-Unfair Competition Law, Product Quality Law, Food Safety Law, Advertising Law and other laws and regulations. Finally, for the streamer, the Opinions clarify their responsibilities and obligations pursuant to the Anti-Unfair Competition Law. If commercial advertising is constituted, the streamer shall also assume the responsibilities and obligations of an advertisement publisher, operator or endorser.
2. Strictly regulating marketing streams
The Opinions stipulate the scope of marketing of goods or services to be regulated, and the establishment and implementation of an inbound merchandise inspection system. No prohibited goods or services shall be marketed through livestreams, and there shall also be no distribution of prohibited commercial advertising on livestreams. For advertisements that should be reviewed before release, the relevant advertisement review provisions should be strictly followed. For goods or services sold via streams, the consumers’ right to know and choose should be protected.
3. Investigating and penalizing illegal conduct in livestream marketing
The Opinions enumerate eight main categories of illegal conduct in livestream marketing, such as e-commerce violations, infringement of consumer rights and interests, unfair competition, product quality violations, intellectual property infringement, food safety violations, and advertising violations. In practice, these illegal acts will be investigated and punished pursuant to corresponding laws.