Court rules against ‘camgirl’ in livestream case

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法院未支持直播案中网络女主播的诉讼请求-Court-rules-against-‘camgirl’-in-livestream-case-labour-law

AShanghai court recently ruled that a co-operation agreement signed between a “camgirl” (a woman speaking or performing on social media over livestream) and a live streaming platform did not create an employment relationship between them. So the woman was bound by the co-operation agreement in accordance with general civil law principles and was liable for liquidated damages for violating the exclusivity clause in that agreement.

The co-operation agreement between the woman and the live streaming platform stated that the woman would provide live broadcasts exclusively on the platform for three years, and that she could not provide similar broadcasts on any other platforms during the contract term. After signing the co-operation agreement, the woman started broadcasting on the platform while the platform used its resources to promote her.

At no point did the platform instruct the camgirl about the frequency, duration or content of her broadcasts. One year later, the platform found that she provided similar live broadcasts on a competing platform. The platform sent cease and desist letters to her and the competing platform, asking them to immediately stop the broadcasts, which continued nonetheless.

The platform then sued the camgirl claiming liquidated damages for her providing similar live broadcasts on other platforms in violation of the co-operation agreement’s exclusivity clause. The defendant argued that the co-operation agreement was actually an employment contract, and therefore the platform was not entitled to liquidated damages because the employment law’s broad restrictions on imposing liquidated damages against employees does not include an express exception for breach of an exclusivity clause.

The court sided with the platform. The court ruled that no employment relationship had been established because the platform provided no instruction to the defendant on the frequency, duration or content of her broadcasts, and thus allowed her full control over those broadcasts. Since no employment relationship had been established, the co-operation agreement between the defendant and the platform was a general civil contract, which bound the defendant by its exclusivity clause and entitled the platform to liquidated damages.

Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Danian Zhang (Shanghai) at danian.zhang@bakermckenzie.com