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 Society of the China Law Society and the Guangdong 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 the cases was “Hong Kong resident Aaron Kwok v. Guangzhou Hemei Company, a portrait rights dispute.”

 
 

In this case, the plaintiff was Aaron Kwok, a well-known Hong Kong celebrity. Guangzhou Hemei Industrial Co., Ltd. (hereinafter referred to as Guangzhou Hemei Company) used Aaron Kwok’s portrait for online and offline advertising and marketing without his permission. The court determined that this constituted an infringement of Aaron Kwok’s right to portrait, and ordered Guangzhou Hemei Company to compensate 1 million yuan for economic losses and to issue a public apology in a newspaper and on its WeChat official account.
 
It is reported that since 2019, Guangzhou Hemei Company has published articles on multiple WeChat official accounts using photos of the plaintiff Aaron Kwok as illustrations for promotional purposes, and the content of these promotional articles contained statements implying that Aaron Kwok endorsed its brand products.
 
Aaron Kwok believes that the defendants' actions have severely infringed upon his portrait rights. Accordingly, he has filed a civil lawsuit with the Guangdong Free Trade Zone Nansha Area People's Court, seeking 5 million yuan in compensation for economic losses, 100,000 yuan for emotional distress damages, and a published apology in newspapers and on WeChat official accounts.
 
 
[1] Court Opinion
In this case, the defendant pushed various types of information to users via its official WeChat public account and provided images bearing the plaintiff's portrait to franchisees for download and use. Without the plaintiff's permission, the defendant used multiple images of the plaintiff's portrait in its official WeChat public account, offline investment promotion meetings, and offline storefront signs to attract public attention, which constituted corporate business conduct. The defendant's above acts misled the public into believing that there was an endorsement relationship between the plaintiff and the defendant, possessed a commercial use nature, and infringed upon the plaintiff's right of portrait. The defendant should bear tort liability for ceasing the infringement, making an apology, and compensating for losses. As for the plaintiff's claims for 5 million yuan in economic compensation and 100,000 yuan in compensation for mental distress, the court, after comprehensively considering the plaintiff's fame, the degree of fault of the infringer, the number, scope, purpose, duration, and impact of the use of the portrait and name involved, as well as current market factors and the evidence in the case, determined at its discretion that the defendant needed to pay the plaintiff 1 million yuan in economic compensation and make an apology in a newspaper and on its WeChat public account. As for mental distress, Guangzhou Hemei Company did not distort Guo Fucheng's image during its use of his portrait, so the court did not support this claim. After the first-instance judgment, neither party filed an appeal.
 
 
The [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.