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Shen Cuihua v. Wang Zhengyun (a case about dispute over network infringement liability)
申翠华诉王铮韵网络侵权责任纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Tort
  • Legal document: Judgment
  • Judgment date: 09-02-2015
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette, Issue 12, 2017 (No. 242)

Shen Cuihua v. Wang Zhengyun (a case about dispute over network infringement liability)
申翠华诉王铮韵网络侵权责任纠纷案
Shen Cuihua v. Wang Zhengyun (a case about dispute over network infringement liability) 申翠华诉王铮韵网络侵权责任纠纷案
[Judgment Abstract] [裁判摘要]
In online transactions, a buyer makes a rating and comments on an online store based on whether the product is consistent with descriptions in the online store, the service attitude of the seller, and other comprehensive factors. Although such rating and comments are subjective, as long as they are not out of maliciously defaming the business integrity of the seller, the buyer's act of making a negative comment is not an insulting libel. 网络交易中买家基于货品本身与网店描述是否相符、卖家服务态度等综合因素对商家进行的评级、评论,虽具有一定的主观性,但只要不是出于恶意诋毁商业信誉的目的,买家给“差评”不属于侮辱诽谤行为。

BASIC FACTS
 
Plaintiff: Shen Cuihua, female, 33 years old, Chinese Han, domiciled in Neijiang City, Sichuan Province. 原告:申翠华。
Defendant: Wang Zhengyun, female, 33 years old, Chinese Han, domiciled in Huangpu District, Shanghai Municipality. 被告:王铮韵。
Plaintiff Shen Cuihua filed a lawsuit with the People's Court of Huangpu District, Shanghai Municipality against defendant Wang Zhengyun for dispute over network infringement liability. 原告申翠华因与被告王铮韵发生网络侵权责任纠纷,向上海市黄浦区人民法院提起诉讼。
Plaintiff Shen Cuihua alleged that: She had a store titled “Sisi Overseas Purchasing of Genuine American Products” on Taobao. On November 1, 2014, defendant Wang Zhengyun bought a pair of Club Manaco modern elastic super skinny pants in her online store. Upon receipt of the pants, defendant made a negative comment on the product on Taobao on the ground of doubting whether the commodity was a genuine one. Since the comment was not in line with the fact, plaintiff patiently explained the matter, contacted defendant for multiple times, and asked defendant to cancel the negative comment, but defendant all ignored. In addition, defendant made an additional comment to barely defame plaintiff's business integrity. Due to existence of such negative comment, applications for returning goods were filed in several deals of plaintiff. Therefore, plaintiff filed a lawsuit with the Court and claimed that the Court should (1) order defendant to cancel the two negative comments on the webpage of plaintiff's Taobao shop titled “Sisi Overseas Purchasing of Genuine American Products” and extend a written apology; and (2) order defendant to pay plaintiff CNY 7,178.80 as compensation. 原告申翠华诉称:原告于淘宝网开设思思美国正品代购店,被告王铮韵于2014年11月1日在原告开设的网店购买了一条CLUBMONACO品牌的摩登弹性超显瘦拼皮裤,被告在收到货品后以质疑货品是否正品的理由在淘宝网上对该货品给出差评。因该评论内容与事实严重不符,原告在对被告作出耐心解释后多次与被告联系要求其撤销差评,均被置之不理。且被告追加评论,赤裸裸的诋毁原告商誉。因该差评的存在,导致原告多笔交易被申请退货。故原告诉至法院要求:1.判令被告撤销在原告淘宝网名为思思代购店网页上的两条差评,公开书面道歉;2.判令被告赔偿原告损失人民币7178.80元。
Defendant Wang Zhengyun contended that: She disagreed with the claims of plaintiff Shen Cuihua, the comments she made turned out to be true, and plaintiff failed to prove that her business integrity was affected. 被告王铮韵辩称:不同意原告申翠华的诉讼请求。被告评价属实,原告也未证明其商业信誉受到影响。

PROCEDURAL POSTURE
 
In the trial of first instance, the People's Court of Huangpu District, Shanghai Municipality found that: 上海市黄浦区人民法院一审查明:
On February 24, 2009, plaintiff Shen Cuihua registered and established a store titled “Sisi Overseas Purchasing of Genuine American Products” on Taobao, opened an Alipay account, and passed the real-name authentication. On November 1, 2014, with the nickname “mikiimai_2009,” defendant Wang Zhengyun ordered a pair of Club Monaco modern elastic super skinny pants in the store “Sisi Overseas Purchasing of Genuine American Products.” Upon receipt of the commodity, defendant made a negative comment. Afterwards, both parties had dispute over the negative comment and defendant made an additional comment according to her feelings. 原告申翠华于2009年2月24日在淘宝网注册成立名为“思思美国正品代购店”并设有支付宝账户,通过实名认证。2014年11月1日被告王铮韵以昵称mikiimai_2009在“思思美国正品代购店”订购了一条CLUBMONACO品牌的摩登弹性超显瘦拼皮裤,在收到货品后,被告发表了买家评论并给出了差评。之后,双方为差评事宜产生了争议,被告又追加评论了自身感受。
It was also found that before defendant Wang Zhengyun made negative comments, there were also negative comments in the store “Sisi Overseas Purchasing of American Genuine American Products.” 另查明:在被告王铮韵给予差评之前,思思美国正品代购店亦存在差评。
In the trial, plaintiff Shen Cuihua stated that the act of defendant Wang Zhengyun was similar to infringement upon her business integrity. She also stated that it was difficult to confirm whether the actual order losses were related to negative comments made by defendant and she had no relevant evidence to be provided. 审理中,原告申翠华表示被告王铮韵的行为类似于对商誉的侵害,还表示实际订单损失是否与被告差评之间有关联,原告难以把握,亦没有相关证据提供。
In the trial of first instance, the People's Court of Huangpu District, Shanghai Municipality held that: 上海市黄浦区人民法院一审认为:

First, when defendant Wang Zhengyun made a negative comment and an additional comment on the commodity in plaintiff's online store according to her own feelings and the whole story, she did not use any insulting libel. Second, plaintiff Shen Cuihua failed to submit any evidence proving the fact that her business integrity was damaged due to the negative comments made by defendant. In conclusion, the Court did not uphold the claims of plaintiff.

 首先,被告王铮韵根据自身感受及事情经过在淘宝网上给予差评及追加评论,并未使用侮辱诽谤的方式;其次,原告申翠华也未提供证据来证明因被告的差评而导致原告的商誉受损的事实。综上,原告的诉讼请求,法院不予支持。
Therefore, in accordance with the provisions of Article 101 of the General Principles of the Civil Law of the People's Republic of China, on June 5, 2015, the People's Court of Huangpu District, Shanghai Municipality rendered a judgment that: 据此,上海市黄浦区人民法院依照《中华人民共和国民法通则离婚不离婚是人家自己的事》第一百零一条之规定,于2015年6月5日作出判决:
The claims of plaintiff Shen Cuihua should not be upheld. 原告申翠华的诉讼请求,不予支持。
After the judgment of first instance was pronounced, Shen Cuihua refused to accept it. She appealed to the No. 2 Intermediate People's Court of Shanghai Municipality and alleged that the insulting libel of appellee Wang Zhengyun obviously existed and the impairment of appellant's business integrity or the decline in the public trust on appellant was obvious. The infringing act of appellee itself was sufficient to prove the existence of damages and it was unnecessary to submit any other evidence. Since appellant did not claim for direct economic losses, she did not submit the corresponding evidence, which had nothing to do with the determination of whether appellee committed an infringement. In conclusion, appellant requested the court of second instance to revoke the judgment of first instance and alter it according to the law. 

一审宣判后,申翠华不服,向上海市第二中级人民法院提起上诉称:被上诉人王铮韵侮辱诽谤行为明显存在。上诉人商业信誉受损或者说公众对上诉人的信赖下降显而易见。被上诉人的侵权行为本身就已经足以说明损害的存在,不需要提供任何其他证据。上诉人并未提出直接经济损失的索赔要求,因此未提交相应的证据,这与认定被上诉人是否侵权没有关系。综上,请求二审法院依法撤销一审判决并予以改判。

Appellee Wang Zhengyun contended that: She disagreed with the request in appeal of appellant Shen Cuihua and requested the court of second instance to dismiss Shen Cuihua's appeal and sustain the original judgment. 被上诉人王铮韵答辩称:不同意上诉人申翠华的上诉请求。请求二审驳回上诉,维持原判。
After the review of second instance, the No. 2 Intermediate People's Court of Shanghai Municipality confirmed the facts found in the trial of first instance. 上海市第二中级人民法院经二审,确认了一审查明的事实。
JUDGMENT'S REASONING

打遮阳伞就显得很娘

 
In the review of second instance, the No. 2 Intermediate People's Court of Shanghai Municipality held that: 上海市第二中级人民法院二审认为:
The focal dispute of this case was whether appellee Wang Zhengyun's act of making negative comments and the relevant comments constituted network infringement upon the Taobao store operated by appellant Shen Cuihua. 本案的争议焦点是:被上诉人王铮韵给予差评的行为及相关评论内容是否对上诉人申翠华经营的淘宝网店构成了网络侵权。
Since online shopping is featured with virtuality, Taobao set the function of making comments by buyers for the purpose of building an information symmetry platform between sellers and buyers through real experience of buyers after their online shopping. In this case, as the buyer, appellee Wang Zhengyun had the right to choose to make a negative comment or not in the column of comments of appellant Shen Cuihua's Taobao store according to her shopping experience upon receipt of the commodity. The rating and comments made by the buyer on Taobao are often based on such comprehensive factors as whether the commodity is consistent with descriptions in the online store and the service attitude of the seller, and the corresponding rating and comments made by the buyer are of certain subjectivity. As long as such rating and comments are not made out of subjective malice, the seller cannot demand that each buyer should make a positive comment. 淘宝网设置买家评论功能的目的就是出于网络购物具有虚拟性的特征,希望通过买家网购后的真实体验评论在买卖双方之间构建一个信息对称的平台。本案中,被上诉人王铮韵作为买家有权在收到货品后凭借自己购物后的体验感受在上诉人申翠华的淘宝网店评论栏中选择是否给予差评,而买家在淘宝网上给出何种评级和评论往往系基于货品本身是否与网店描述相符、卖家服务态度等综合因素进行考量,且买家作出的相应评级和评论具有一定的主观性,但只要这种评级和评论不是基于主观恶意的目的,卖家则不能过分苛求每一个买家必须给予好评。
According to the corresponding evidence provided by appellant Shen Cuihua, appellee Wang Zhengyun's act of making negative comments and the relevant comments were not out of malicious defaming of business integrity. Therefore, the act of the appellee was not subjectively insulting libel, and appellee's act of making negative comments and the relevant comments did not constitute an act of network infringement. 从上诉人申翠华提供的相关证据来看,被上诉人王铮韵给予差评的行为及相关评论内容并非系出于恶意诋毁商业信誉的目的。因此,从主观上来看,被上诉人的行为并非属于侮辱诽谤行为。故被上诉人给予差评的行为及相关评论内容并不构成网络侵权行为。
JUDGMENT 
In conclusion, the facts found by the court of first instance were clear and the judgment of first instance was not inappropriate. Therefore, in accordance with the provisions of subparagraph (1) of paragraph 1 of Article 170 of the Civil Procedure Law of the People's Republic of China, on September 2, 2015, the No. 2 Intermediate People's Court of Shanghai Municipality rendered a judgment: 综上所述,一审法院认定事实清楚,判决并无不当。据此,上海市第二中级人民法院依照《中华人民共和国民事诉讼法》第一百七十条第一款第(一)项之规定,于2015年9月2日作出判决:
To dismiss the appeal and sustain the original judgment. 驳回上诉,维持原判。
This judgment shall be final.

 本判决为终审判决。
 

     
     
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