Aaron Kwok awarded one million in compensation; what is special about foreign-related cases?

Compiled from: Southern Metropolis Daily
 
Case review
On December 26, the Case Law Research Association of the China Law Society and the Guangdong Provincial High People's Court released the fifth batch of typical cross-border dispute cases in the Guangdong-Hong Kong-Macao Greater Bay Area, one of which was the "Hong Kong resident Aaron Kwok v. Guangzhou Hemei Company portrait rights dispute case."

 
 

In this case, the plaintiff is the well-known Hong Kong artist Aaron Kwok. Guangzhou Hemei Industrial Co., Ltd. (referred to as Guangzhou Hemei Company) used Aaron Kwok's portrait for online and offline advertising marketing without his permission. The court determined that this constituted an infringement of Aaron Kwok's portrait rights and ordered Guangzhou Hemei Company to pay 1 million yuan in economic compensation and to issue a public apology in newspapers and on its WeChat public account.
 
It is reported that since 2019, Guangzhou Hemei Company has published articles on multiple WeChat public accounts featuring photos of plaintiff Aaron Kwok as illustrations for promotional purposes, and the content of these articles contained statements implying that Aaron Kwok endorsed their brand products.
 
Aaron Kwok believes that the defendant's actions have seriously infringed on his right to肖像权, and has therefore filed a civil lawsuit with the Nansha District People's Court of the Guangdong Free Trade Zone, demanding compensation for economic losses of 5 million yuan, mental distress damages of 100,000 yuan, and a public apology published in newspapers and on WeChat public accounts.
 
 
[1] Court Opinion
In this case, the defendant pushed various information to users through its official WeChat public account and made images bearing the plaintiff's portrait available for franchisees to download and use. Without the plaintiff's permission, the defendant used multiple images of the plaintiff's portrait on its official WeChat public account, at offline investment conferences, and on storefront signs to attract public attention, which constitutes a business operation. The aforementioned actions of the defendant misled the public into believing there was an endorsement relationship between the plaintiff and defendant, having a commercial nature. This use infringed on the plaintiff's right to肖像权, and the defendant must bear tort liability by ceasing the infringement, issuing an apology, and compensating for losses. Regarding the plaintiff's claim for 5 million yuan in economic compensation and 100,000 yuan in mental distress damages, the court, considering the plaintiff's fame, the degree of fault of the infringer, the quantity, scope, purpose, duration, and impact of the use of the plaintiff's portrait and name, along with current market factors and evidence in the case, determined that the defendant must pay the plaintiff 1 million yuan in economic compensation and issue an apology in newspapers and on WeChat public accounts. As for mental distress, since Guangzhou Hemei Company did not defame the plaintiff's image in using Aaron Kwok's portrait, the court did not support this claim. After the first-instance judgment, neither party appealed.
 
 
《 [1] The People's Republic of China Civil Code
Article 1019: [Negative Rights of Portrait Right]
No organization or individual may infringe upon another person’s right to portrait by means of vilification, defacement, or falsification through information technology. Without the consent of the portrait right holder, no one may produce, use, or publicly disclose the portrait of the right holder, unless otherwise provided by law.
Without the consent of the portrait right holder, the owner of the portrait work may not use or publicly disclose the portrait of the right holder by means of publication, reproduction, distribution, rental, exhibition, or other means.
 
 
Law on the Application of Laws to Foreign-Related Civil Relations
Article 41
Parties may agree on the law applicable to a contract. If the parties have not made a choice, the law of the habitual residence of the party whose performance best reflects the characteristics of the contract, or other law most closely connected with the contract, shall apply.

 
 

 
[1] The author's perspective
[1] The right to portrait refers to the right of a natural person to reproduce, use, or permit others to use their own portrait. That is, everyone has the right to their own portrait. However, in daily life, because celebrities' portraits carry more commercial value, cases of infringement of celebrities' portrait rights are more common. The particularity of this case lies not only in the fact that Aaron Kwok is a celebrity, but also that he is a Hong Kong resident. Therefore, when applying the law in this case, it is necessary to make a judgment based on the Law on the Application of Laws to Foreign-Related Civil Relations.
 
[2] Although this case is ultimately under the jurisdiction of Chinese courts and applies the Chinese Civil Code, this does not mean that the Law on the Application of Laws is a dead letter. Its fundamental purpose is to clarify the application of laws in foreign-related civil relations, reasonably resolve foreign-related civil disputes, and protect the legitimate rights and interests of the parties. It can be seen that in foreign-related cases, more legal details need to be paid attention to, as these nuances will determine the success or failure of a case.