Wong, a salesman of Company A, posted a message on his Wechat moments with several pictures, which included a picture shows a burned up shared power bank marked with Brand B, and a picture shows a test report of a shared power bank marked with Brand A indicating its qualified quality. Later, B sued A. A defended that it had no knowledge of Wong’s behavior which is a personal one, the court held that A had constituted unfair competition.
In recent years, the mainstream viewpoint shows that WeChat’s moments, Weibo and other similar individual’s media are We-Media, which has a social function and a commercial function. Many people use these We-Media to promote business, and even several enterprises require employees to use their We-Media to post enterprises’ promotional materials. If, at the request of an enterprise, its employee posts any content which violates the law or infringes other parties’ rights, the enterprise shall undertake the liabilities. However, there is a dispute regarding that an employee voluntarily posts those content aforesaid, whether such behavior shall be deemed as a “Duty Behavior”?
Regarding this dispute, several typical judgments could be taken into reference. The analysis of Shanghai Pudong New District People’s Court in the case (2018) Hu 0115 Min Chu No. 92656 is the representative one. The court pointed out, “WeChat moments is not only a private social scene, it also has other functions such as promotion, information dissemination and so on. The determination on a ‘Duty Behavior’ shall take several factors into consideration. The factors include the overall nature of the scene, the specific content, the beneficiary, the will of relevant employer and etc. In view of this, the will of relevant employer is not the only factor. Therefore, although in the administrative enforcement and judicial practice, in those cases that an employer is claimed for liabilities due to employee’s We-Media, the majority of those employers defend that they have not required employees to do so or they have no knowledge of such behavior, however, in the published judgments and administrative penalty decisions, such defense is rarely supported.
From the perspective of enterprises, in order to reduce risks of becoming collateral damage in similar cases, the following measures could be taken into consideration.
First, to establish the compliance management system regarding employees’ personal behaviors, including behaviors related to We-Media and so on, corresponding management measures and penalties, in addition, to conduct relevant compliance training regularly.
Second, to distinguish the boundary between employees’ work and life. Enterprises could require employees to use work email, enterprise’s WeChat, and etc., to carry out business in the work, and conduct regularly inspection and evaluation on whether employees have implemented those requirements.
Finally, if enterprises have to use employees’ We-Media, it is recommended to conduct a legal compliance review before posting relevant information.