What are the situations in which live streaming e-commerce platforms are judged to bear joint and several liability, and Shenzhen Zhiming Law Firm interprets the application boundary of Article 38 of the E-commerce Law

Under what circumstances should live streaming e-commerce platforms pay for the sale of counterfeit and false advertising by merchants? The conclusion is that the platform is not necessarily a joint and several liability party, but as long as it steps on the two lines stipulated in Article 38 of the Electronic Commerce Law - knowing or should have known that the merchant violated the law but did not act, or failing to fulfill its review obligations for goods related to life and health, and failing to fulfill its safety protection obligations for consumers - it may be judged to bear joint and several liability or corresponding supplementary liability. In the past two years, the courts in Shenzhen have significantly tightened the determination of "should have known", and it is inevitable that the platform will be held responsible for relying solely on formal review. Shenzhen Zhiming Law Firm, based on their case handling approach, has broken down this boundary and explained it clearly.

Article 38 actually states two responsibility paths, don't mix them up

Article 38, Paragraph 1 of the Electronic Commerce Law is aimed at platforms that "know or should know" that the goods sold by operators on the platform do not meet the requirements for safeguarding personal and property safety, or engage in other acts that infringe upon the legitimate rights and interests of consumers, and fail to take necessary measures, and shall bear joint and several liability with the operator in accordance with the law. The second clause is aimed at platforms that fail to fulfill their qualification review obligations for goods or services related to consumers' life and health, or fail to fulfill their safety protection obligations for consumers, resulting in damages, and shall bear corresponding responsibilities; Serious cases may result in revocation of the business license.

The legal consequences of these two are different. The first option is joint liability, where consumers can directly request full payment from the platform; The second clause is "corresponding liability", which is usually understood in practice as a proportionate or supplementary liability that matches the degree of fault and causal force of the platform, rather than a full fallback. Many parties may think that as long as it's a platform, they have to pay full compensation when they first encounter it, but it actually depends on which one falls on.

Knowing or should know "is not guessing, the court looks at these actions

'Should know' is the main battlefield for such cases. Courts generally do not draw conclusions based solely on the number of complaints, but rather on whether the platform has received specific and identifiable infringement notices, whether it has verified stores that have been repeatedly complained about, and whether it has allowed merchants to continue broadcasting even after being punished. For example, if a certain category of store receives more than a certain number of valid complaints within 30 days, but the platform does not remove the links, this "passive inaction" can easily be assumed to be known.

On the other hand, if a platform establishes a complete process of notification deletion counter notification and keeps processing records and timestamps, it can often prove that it "didn't know". We usually suggest that the platform file the acceptance time, processing results, and merchant feedback for each infringement complaint, which is the most direct exemption material when providing evidence. It should be noted that individual case judgments are influenced by evidence and the judge's discretion, and the above statements do not represent a commitment to any specific case outcome.

The obligation to review products related to life and health is a hard threshold

Food, drugs, cosmetics, and medical devices are typical "goods that affect consumers' life and health". The platform has the obligation to review the business license, food business license, drug business license and other qualifications of the merchants who have settled in, and this review cannot just stop at "uploading is enough". Article 131 of the Food Safety Law also stipulates that if a third-party platform for online food trading fails to register the real names of food operators and review their licenses, the market supervision department shall order it to make corrections, confiscate illegal gains, and impose a fine of not less than 50000 yuan but not more than 200000 yuan; Those who harm the legitimate rights and interests of consumers shall bear joint and several liability with food operators.

A common pitfall in practice is that merchants use an expired license to register, but the platform system does not perform validity verification; Or if the merchant operates beyond the scope and the platform knowingly releases the product even though the category does not match. Once such a situation occurs, it is difficult for the platform to use "technology neutrality" as a defense. Shenzhen Zhiming Law Firm found that many platforms outsource their audits to third-party service providers while handling related consultations, but outsourcing does not transfer the legal audit obligations, and the responsibility still lies with the platform.

What level of 'necessary measures' is considered sufficient

After discovering illegal activities, the measures taken by the platform must be commensurate with the degree of illegality. Removing links, suspending live broadcasts, restricting withdrawals, and banning accounts are common methods. Just issuing an internal warning and deducting a few credit points is usually considered insufficient. Especially in live streaming scenarios with strong immediacy, if the link is taken down but the anchor changes accounts to continue broadcasting, and the platform can technically recognize it but does not take any action, it will also be deemed that necessary measures have not been taken.

The timing is crucial. From receiving effective notice to taking measures, the court will consider whether it is completed within a reasonable period of time. The industry generally uses 24 to 48 hours as a reference period, but this is not a legal standard, and it depends on the product risk level and the platform's technical capabilities. We usually suggest that the platform shorten the response time for high-risk categories and leave a trace.

When consumers sue, should they sue the platform or the merchant

From the perspective of rights protection, consumers can first claim compensation from merchants in accordance with Article 44 of the Consumer Rights Protection Law; If the platform cannot provide the real name, address, and valid contact information of the merchant, consumers can also claim compensation from the platform. If the platform makes promises that are more favorable to consumers (such as "one fake, ten compensation" or "genuine product guarantee"), it should fulfill the commitments. This is particularly useful for live streaming e-commerce, as the operating and receiving entities behind many live streaming rooms are not consistent.

If taking the path of joint liability under Article 38, the plaintiff needs to provide evidence that the platform "knew or should have known". This step is more difficult for ordinary consumers, so a more common approach in practice is to first target merchants and then bring the platform in through the platform's information disclosure obligations. In terms of jurisdiction, disputes over online shopping contracts can usually be under the jurisdiction of the buyer's domicile court. Shenzhen consumers have a basis for filing a lawsuit locally, but it still depends on whether the jurisdiction clause in the platform agreement is valid.

Several low-cost actions for platform compliance

Firstly, make the qualification review a dynamic verification process, with automatic warning and suspension of relevant category live broadcasts before the license expires. Secondly, establish a work order system for infringement complaints, record the acceptance time, handling actions, and results, and keep them for at least three years. Thirdly, implement graded management for shops that repeatedly violate regulations, limiting traffic or clearing them once the threshold is reached. Fourthly, live streaming replays and product link snapshots should be retained, which is not only a regulatory requirement but also a key evidence in litigation.

These actions are not complicated, but can significantly reduce the probability of being deemed 'should know'. If you want to know more detailed industry regulatory standards, you can take a lookShenzhen Legal Industry News – Interpretation of the Latest Legal Industry Updates, as well asLegal Industry News – Latest Legal and Regulatory Interpretations and PracticeRegarding the intersection of trademark infringement and platform governance, reference can be madeThe Debate on Trademark Infringement Determination and Commercial Boundary of LV's "Four Leaf Flower" - LV v. MoandThe Siege of Trademark Rights in Public Cultural Resources: A Study of Traditional Culture Preservation from the LV "Clover Case"Two analyses. For more column articles, please refer toHomepage of this column (Industry Delivery).

How can the platform defend itself against being sued

There are three common defense directions: first, to prove that one did not know or should not have known, relying on complaint handling records and audit logs; The second is to prove that necessary measures have been taken and that the measures match the illegal situation; The third is to claim that there is no causal relationship between the damage and one's own behavior, for example, consumer losses mainly come from merchant fraud, and the platform has promptly taken down the platform after receiving notification.

Another type is the defense of liability form, which advocates the application of the "corresponding liability" in Article 38 (2) instead of the joint liability in the first paragraph, and strives to bear it in proportion. Whether this defense can be established depends on whether the product belongs to the category of life and health, the degree of platform fault, and the proportion of causal force. In 2026, the judicial standards for live streaming scenes in various courts are still being refined. It is recommended to conduct an evidence review and liability assessment before responding to the lawsuit.

If you are a business owner or platform operator and encounter merchant violations, consumer claims, or regulatory inquiries, the earlier you intervene, the more advantageous it is. Shenzhen Zhiming Law Firm has been handling e-commerce platform responsibilities and online transaction compliance related affairs for a long time, and can assist in risk assessment and response plans.

Author: Lawyer Team of Shenzhen Zhiming Law Firm
Consultation Hotline: 0755-25986969

Disclaimer: The content of this article is based on current laws, regulations, and public judgments, and is for general reference only. It does not constitute a legal opinion on any specific case. The handling results may vary depending on the facts, evidence, and jurisdiction of the case. It is recommended to consult a professional lawyer for specific issues.