China: Risky Business - Liability For False Or Misleading Advertising Under PRC Law (Chinese)

Last Updated: 1 November 2016
Article by Richard Bell and Victor Yang

商业风险 - 中国误导性虚假广告的法律责任

概述

过去几年中跨境电子商务在中国蓬勃发展。许多因素造就了今日的辉煌包括:科技水平的进步、中国日益壮大的中产阶级和中国政府为有效进口而积极推动保税区建设。根据最近的估算,电子商务的所产生价值在2015年超过3万亿美元。

无论是通过电子商务平台还是其他传统途径,制造商想要在中国推广销售他们的产品,都需要清楚地意识到中国对于禁止误导性虚假广告有着严格的法律规定。

本文概述了误导性宣传在中国的现状以及对于贸易者随之而来的法律风险。

关于误导性宣传的法律

在中国与误导性广告相关的法律法规如下:

  1. 反不正当竞争法
  2. 广告法
  3. 最高人民法院关于审理不正当竞争民事案件应用法律若干问题的解释("司法解释")

什么是误导性宣传?

反不正当竞争法第9条规定:

"经营者不得利用广告或者其他方法,对商品的质量、制作成分、性能、用途、生产者、有效期限、产地等作引人误解的虚假宣传。"

广告法第4条进一步规定:

"广告不得含有虚假或者引人误解的内容,不得欺骗、误导消费者。"

首先值得注意的是, 除广告以外的其他宣传形式也需要符合反不正当竞争法第9条的规定。因此必须要认识到法律对于任何形式的宣传有着广泛的适用性,不仅仅是广告,"其他方式"的宣传也适用。该兜底条款的措辞,可以确保没有一种宣传形式能够避开法律的管制。

根本而论, 对商品的质量、制作成分、性能、用途、生产者、有效期限、产地任何形式的宣传都需要符合该法条的规定。

司法解释的第8条款制订了详细的规定,从司法实践的视角,判断何种行为会构成误导性的虚假宣传行为:

经营者具有下列行为之一,足以造成相关公众误解的,可以认定为反不正当竞争法第9条第一款规定的误导性的虚假宣传行为:

  1. 对商品作片面的宣传或者对比的;
  2. 将科学上未定论的观点、现象等当作既定事实用于商品宣传的;
  3. 以歧义性语言或者其他引人误解的方式进行商品宣传的。

最高人民法院曾报道过一起经典案例, 涉案方为福建省福清大闽生物工程有限公司与福州南海岸生物工程有限公司,判定禁止贸易商或服务供应商进行误导性宣传。

在实践中,贸易商经常将自己的商品与其竞争对手的商品进行片面对比,即扬己之长克敌之短。但是,即使该陈述是准确无误的,若损害了其他贸易商的利益,该陈述也可能违背第8条的规定。上述宣传也可能违反了反不正当竞争法第14条的规定,以及关于"商业诋毁"的规定。

对于产品的宣传需要简明准确。贸易商应当仔细推敲广告中的措辞。当某特定短语有两种或两种以上不同的解释时,其中一种或两种解释都涉嫌误导消费者时,则有可能违反了第8条的规定。贸易商因此要仔细考虑某一特定陈述是否有一种以上含义。

现实生活中,贸易商为了推广自己产品而采用夸大宣传的形式是常见的,也可以理解。因此,重要的是需要确认夸大宣传是否在中国属于为不正当竞争的手段。因此,司法解释第8条做出了如下规定:

"以明显的夸张方式宣传商品,不足以造成相关公众误解的,不属于引人误解的虚假宣传行为。"

以虚构的事实所作出的宣传,是明显具有误导性的。但是,如果宣传是基于事实上的,但是在一定程度上并不精确或完整 ,当满足下列条件时属于误导性宣传:

  • 该宣传足以就问题产品本身或者其特性误导消费者;
  • 贸易商从宣传中获益 – 例如从中获得经济利益。

总之,如果对于宣传的性质无法确认时,法院会基于该贸易商的意图以及其实际造成的危害或损失来做出判决。法院会考虑的因素有,日常生活的经验,大众的关注程度,可能导致的潜在误解,以及实际情况和有关于问题产品的事实。

责任

根据反不正当竞争法24条对于做出误导性宣传的法律后果,除了向第三方进行赔偿(例如有竞争关系的贸易方或消费者):

"经营者利用广告或者其他方法,对商品作引人误解的虚假宣传的,监督检查部门应当责令停止违法行为,消除影响,可以根据情节处以一万元以上二十万元以下的罚款。"

在中国,私人消费者为了获得一定的罚金倾向于结成联盟对发布虚假或误导性广告的贸易商进行投诉。尽管这些罚款是合理的,多次违规下金额可以叠加。这类投诉很难抗辩并且经常占用宝贵的经营时间。

最重要是虚假误导会影响公司声誉从而影响销售。对此贸易商们避之不及。

结论

为了成功推销产品并且避免承担不必要的法律责任和对公司声誉的损害,贸易商应当要对于误导、虚假宣传方面的法律了解透彻,并且根据相关法律修改自身的广告。一旦陷入麻烦,贸易商需要谨慎小心。若不符合中国法律的规定,在电视和网络上即便是貌似最聪明的广告语对经营者的业务影响也可能是弊大于利。

Risky Business - Liability For False Or Misleading Advertising Under PRC Law (Chinese)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions