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Against the backdrop of the continuous development of the Internet era, online communication channels and platforms including Weibo, Douyin, WeChat Official Accounts and Xiaohongshu have gradually emerged. To attract traffic for the purpose of growing their follower base or generating profits, most online users of the aforesaid platforms usually publish content by resorting to clickbait headlines or releasing gossip, which inevitably gives rise to infringement incidents. Meanwhile, the Internet features fast transmission speed and wide audience reach, which will also accelerate the commission of infringing acts and aggravate the consequences of infringement. Taking the case where Douyin user "Cheshiji" infringed upon NIO's right to reputation as the starting point, this paper discusses how to safeguard legitimate rights when one's right to reputation is infringed via the Internet.

Introductory Case:

On November 14, 2023, NIO officially announced that the original judgment was upheld in the second instance of the case concerning infringement upon NIO's right of reputation by Shanghai Yunti Information Technology Co., Ltd. (hereinafter referred to as "Shanghai Yunti") through the Internet account "Cheshiji" under its control. The infringer Shanghai Yunti shall: (1) Apologize to NIO, and publish an apology statement (the text of which shall be reviewed and approved by the court) on its Douyin account "Cheshiji" for 30 consecutive days within 10 days from the date the judgment becomes legally effective; (2) Compensate NIO RMB 300,000 for economic losses within 10 days from the date the judgment becomes legally effective.

The court finally held that the content of the case-related video of Shanghai Yunti is untrue, which misleads ordinary netizens without clear knowledge of electric vehicle price information to form wrong perceptions, and such act constitutes obvious fault. The content of the case-related video has lowered the public's social evaluation of NIO and infringed upon its right of reputation. The tortfeasor Shanghai Yunti shall bear tort liability.

This case is a typical example of infringement upon others' right to reputation via the Internet. The infringing act is mainly manifested as publishing false information to attract online traffic, which causes damage to the infringed party's right to reputation, lowered social evaluation and further economic losses. The infringer shall ultimately bear the liability for reputation infringement, including making an apology and paying compensation for huge economic losses. The focus of this article is to discuss how to safeguard legitimate rights when one suffers from Internet-based infringement upon their right to reputation by others.

Part I: Legal Basis for Rights Protection – Relevant Legal Provisions on Infringement upon the Right of Reputation via the Internet

I. Principle Provisions of the Civil Code on Infringement of the Right to Reputation:

1. The right to reputation is a component of personality rights. Both natural persons and legal persons enjoy the right to reputation, and no organization or individual may infringe upon others' right to reputation by such means as insult or defamation.

2. Any act of infringing upon the name, portrait or reputation of heroes, martyrs and other relevant persons may constitute an infringement upon the right to reputation;

3. Where a victim's right to reputation is infringed, the victim shall have the right to claim against the tortfeasor for cessation of infringement, removal of obstruction, elimination of danger, elimination of adverse effects, rehabilitation of reputation and extension of apology, and the aforesaid claims shall not be subject to the provisions on limitation of action.

4. The Book on Tort Liability of the Civil Code of China puts forward the concept of network tort liability, and introduces the provisions concerning the infringement of other persons' rights and interests by "network users" and "network service providers".

II. Provisions on Reputation Infringement under the Internet Background: *Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving Infringement of Personal Rights and Interests by Use of Information Networks*

1. Both Internet users and Internet service providers may be sued. Where they are named as co-defendants, the plaintiff generally claims that they shall bear joint and several liability when filing the lawsuit.

2. If the infringed suffers property loss or serious mental distress when his or her right to reputation is infringed upon, he or she may claim compensation for such property loss and mental distress.

3. The expenses incurred by the infringed for stopping the infringing act and safeguarding their rights may be claimed in litigation as the property loss specified in Article 2 above, including reasonable expenses for investigation and evidence collection, attorney's fees, etc.

Part II: How to Collect Evidence in the Event of Online Infringement? How to Obtain the Identity Information of the Infringers Hidden Behind the Screen?

I. When collecting evidence for online infringement, attention shall be paid to two key points, namely "promptness" and "notarization".

In cyber tort cases, evidence of infringement is generally electronic evidence, such as posts on Weibo, notes on Xiaohongshu, and articles on WeChat Official Accounts, etc. The aforesaid electronic data may be deleted, edited or modified at any time. If the infringing information is deleted, edited or modified, which makes it impossible to obtain evidence to prove the existence of the tortious act and the consequences of the tort, the party concerned will face the consequence that the alleged tort is not established in the course of litigation. Therefore, when finding that their legitimate rights and interests have been infringed, right holders shall not engage in a war of words, but shall immediately contact a notarial institution to notarize the infringing information. Since traditional notarization methods may have defects such as high notarization fees and slow processing efficiency, online notarization can be adopted as an alternative.

II. In the event of cyber infringement, if the information of the actual tortfeasor cannot be obtained, the right holder may directly bring an action against the Internet Service Provider.

< cellpadding="0" cellspacing="0"> Cyber infringements occur frequently due to the anonymity of the Internet. As ordinary users, we certainly have no access to the information of infringers hiding behind the screen. However, when Internet users register for and log into their accounts, they usually submit their basic information to Internet platforms for registration purposes. Therefore, if the information of the actual infringer is not available at the time of initiating a lawsuit, the claimant may directly sue the Internet service provider and request the same to disclose the identity information of the relevant Internet user. The matter may also be handled in accordance with Paragraph 3, Article 2 of the *Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving Infringement of Personal Rights and Interests through Information Networks*, which stipulates that "Where a plaintiff only sues an Internet service provider, if the Internet service provider applies for adding an identifiable Internet user as a co-defendant or a third party, the people's court shall grant permission." The figure as shown below (source: Lawyer Li Zhenwu) is the user registration letter provided by Baidu platform to the Beijing Internet Court.

Part III: Exploration on the Assumption of Liabilities by Internet Users and Network Service Providers by Taking Infringement of WeChat Official Account Articles as an Example

I. Where articles published on WeChat Official Accounts constitute infringement, shall the network service provider, i.e. Tencent, be held liable?

Article 1195 of the *Civil Code of the People's Republic of China* stipulates that: "Where a network user commits a tortious act by using network services, the right holder has the right to notify the network service provider to take necessary measures such as deletion, blocking, and disconnection of links. The notification shall include preliminary evidence proving the infringement as well as the true identity information of the right holder. Upon receipt of the notification, the network service provider shall promptly forward the notification to the relevant network user, and take necessary measures based on the preliminary evidence proving the infringement and the type of service; where the network service provider fails to take necessary measures in a timely manner, it shall be jointly and severally liable with the said network user for the expanded part of the damage." This provision is also known as the "safe harbor principle" in information network infringement cases in China.

Pursuant to the aforesaid laws, as for infringement arising from WeChat Official Account articles, Tencent is a network service provider offering WeChat Official Account services. Upon receipt of notice from the infringed party, Tencent may be exempted from tort liability if it takes necessary measures such as deletion, blocking and disconnection of relevant links in a timely manner in general; otherwise, it shall bear joint and several liability with the infringing network user for the aggravated part of the damage.

Reference Case: Case (2020) Su 03 Min Zhong No. 4949 The court held that the author of the article involved and the operator of the WeChat Official Account were the tortfeasors, who shall be liable for the damage incurred to the right of reputation of Qishan Shenwei Company. Tencent failed to delete the relevant article on the WeChat Official Account in a timely manner after receiving the notice from the right holder Qishan Shenwei Company, and shall bear joint and several liability with the tortfeasors for the expanded part of the damage.

The court of second instance held that the article in question published by Xue Mou on "Chanyufanhou", the WeChat official account of Yulinling Company, had 6,237 views and 17 likes, which lowered the social evaluation of Qishan Shenwei Company's products within a certain scope, thereby causing certain economic losses to Qishan Shenwei Company.

There is no impropriety in holding that the act of Xue Mou in producing the involved article and publishing it on his WeChat Moments and the WeChat Official Account *Chanyufanhou* constitutes an infringement upon the right of reputation of Qishan Shenwei Company. The involved WeChat Official Account *Chanyufanhou* operated by Yulinling Company, as a professional official account providing information services including food reviews and recommendations, plays a certain guiding role and exerts influence on the public's consumption behavior and consumption concepts. It shall fulfill the duty of prudent attention to the content of articles in the course of publishing relevant articles.

Xue Mou and Yulinling Co., Ltd., as the author and publisher of the article involved, shall be liable for the damage sustained by Qishan Shenwei Co., Ltd. to its right of reputation.

As a network service provider, Tencent failed to take active measures in a timely manner after receiving the complaint from Qishan Shenwei Company on September 8, 2019. It did not delete the articles involved in the case until it was served with the litigation response documents by the court of first instance on December 17, 2019, which objectively caused the expansion of losses suffered by Qishan Shenwei Company. In accordance with the provisions of Article 36 of the Tort Liability Law of the People's Republic of China, the court of first instance ruled that Tencent shall bear joint and several compensation liability for the expanded part of the losses, and discretionarily determined the amount of such part of losses at RMB 5,000. This ruling is not improper.

II. Where an article solicited from others, compiled and published by a WeChat Official Account is suspected of infringing upon another person's right to reputation, is the contributor a qualified defendant?

The author has reviewed relevant cases and found that in the course of litigation, the administrator of a WeChat Official Account is usually directly listed as the defendant. Some courts neither verify the identity of the contributor nor join the contributor as a co-defendant. During the trial, the core element for examination is whether the administrator of the WeChat Official Account has fulfilled its duty of prudent review. Certainly, there are also circumstances where the plaintiff directly names the contributor as a co-defendant. If the court ascertains that the article published on the WeChat Official Account is written by the contributor, both the contributor and the operator or administrator of the WeChat Official Account are proper defendants in the relevant case. Where the tort is established, the two parties shall bear joint liability for the consequences of the tort. If there is no relevant evidence to prove that the infringing article is contributed by a third party, the operator or administrator of the WeChat Official Account shall bear the corresponding liability.

Reference Case 1: In Case (2019) Hu 01 Min Zhong No. 10705, although the defendant pleaded that the article published on its official WeChat account was contributed by a third party, the court held that the defendant failed to verify the relevant content of the article released on its official WeChat account, did not process the relevant expressions contained therein, and failed to fulfill its prudent review obligation, therefore the defendant shall bear tort liability.

Reference Case 2: In Case No. (2019) Hu 02 Min Zhong 10605, Wang also claimed that the infringing article was submitted by a netizen. However, the court held that as the administrator of the WeChat Official Account, Wang failed to verify the authenticity of the contributed article, and did not effectively mosaic the name of the infringed party when publishing the article. The comment section of the aforesaid article contained words of personal attack and insult against the infringed party. The article had recorded a considerable number of views and exerted certain influence. The above-mentioned circumstances are sufficient to cause the diminution of the infringed party's social evaluation. The court of first instance found that Wang's act constituted infringement of the right to reputation, and ordered the appellant to bear corresponding civil tort liability on the basis of factors such as the tortious act, damage consequences and the degree of subjective fault of the tortfeasor. The aforesaid ruling is not improper, and this Court hereby affirms it in accordance with the law.

Reference Case 3: In Case (2020) Su 0113 Min Chu No. 6433, the court held that based on the chat records between the plaintiff Liu and Peng, the chat records between the plaintiff and the WeChat user named "chosen", as well as the Registration Form for Receiving and Handling Alarms submitted by the plaintiff Liu, it could be proven that the main text of the article involved in the case was written and contributed by Xue, and after being revised by a writer, it was published on the WeChat Official Account administered by Peng. On the day of publication, the plaintiff immediately communicated with Peng and reported to the police to request deletion of the article, but Peng refused to do so. Although the defendant challenged the authenticity of the chat records between the plaintiff and the WeChat user "chosen", he failed to submit evidence to refute the claim, and this Court affirms the authenticity of the aforesaid chat records. Therefore, defendant Xue, as the contributor of the involved article, and defendant Peng, as the administrator of the WeChat Official Account that published the article, are proper defendants in this case. There is a causal relationship between the harmful acts committed by defendants Xue and Peng and the damage to the plaintiff's reputation, so the acts of the two defendants meet the elements of infringement upon the right of reputation and have constituted a tort.

Part IV: Determination of Liability for Online Infringement of the Right of Reputation

In terms of whether the liability for infringement of the right to reputation is constituted, the people's court generally makes a comprehensive determination based on such aspects as whether the victim has sustained damage to reputation, whether the perpetrator has committed an infringing act, whether there is a causal relationship between the infringing act and the damage consequence, and whether the infringer is at fault. The examination generally covers the following key points.

I. Objective Facts The core examination shall focus on whether the facts described in the articles or posts involved in the case concerning right of reputation infringement are objective and authentic, and whether there exist acts of malicious insult or defamation against others. For example, even if a WeChat Official Account publishes articles contributed by a third party, it may still be adjudicated to bear tort liability on the ground of failing to fulfill its duty of prudent review.

II. Subjective Purpose By comparing the specific background details of the article or post involved in the case with its content, ascertain whether the publisher of the aforesaid article or post is at fault and has the intent to insult or defame others' personal dignity. For example, in the case of Cheshiji's infringement upon NIO's right to reputation, the court held that the content of the involved video published by the tortfeasor Shanghai Yunti was untrue, which misled ordinary netizens who had no clear knowledge of electric vehicle price information into forming erroneous perceptions, and that the tortfeasor was clearly at fault.

III. Whether the content has clear identifiability of a specific subject When hearing cases of infringement upon the right to reputation, the people's courts usually examine the following matters: whether the allegedly infringing article involved in the case has been subject to effective masking of relevant information, whether it explicitly discloses the identity information of the infringed party by name, or even if the name of the infringed party is not clearly specified, there exist distinct characteristics that allow readers to identify the specific person from the article. Under the aforesaid circumstances, the act is more likely to constitute infringement. For example, in Case (2019) Hu 02 Minzhong No. 10605, the court held that when publishing the relevant article on the WeChat Official Account, Wang failed to conduct effective masking of the name of the infringed party, and the comment section of the article contained personal attacks and insulting remarks against the infringed party, thus constituting infringement.

IV. Scope of Influence The reputational impact of the article on the plaintiff shall be determined on the basis of the article's audience reach, duration of existence, as well as subsequent responses from the media and the public. Among them, the repost volume, like count, number of comments and comment content of the article serve as explicit indicators of the impact of infringement, based on which the scope of impact of the infringement can be quantified. Infringement shall not be constituted if the audience is limited, the duration of existence is relatively short, the content of secondary reports released afterwards by other media remains objective and neutral, the public does not one-sidedly take the defendant's remarks as the complete set of facts, and no degradation of the public's evaluation of the plaintiff's character is caused thereby.

Lawyer's Reminder:

It is imperative to consult professionals for investigation and evidence collection immediately once the right of reputation is infringed, so as to avoid the failure to determine the tortious conduct due to the absence of key evidence.

At the same time, the vast number of Internet users are hereby reminded that when publishing information online, they shall pay special attention and refrain from attacking others by means of insult or defamation. The Internet is not a lawless zone. Rights protection shall be carried out through reasonable and lawful methods, and you shall never put yourself in the predicament of being sued as the defendant instead for infringing upon others' right to reputation.