First, is celebrity endorsement a legal issue or a moral issue?
In the operation of market economy, consumer demand and market share often become the pursuit objects of enterprises, and the cooperation between stars and brands is naturally understandable. The best result is that brands enhance their popularity through the power of stars, and stars also increase media exposure and enhance their own value through brand promotion. However, because endorsement advertisements exaggerate the function and quality of products, they mislead consumers objectively and cause personal and property damage to some consumers. While condemning unscrupulous merchants and government oversight, we should be aware of such a question: Is celebrity endorsement a legal issue or a moral issue?
We know that a celebrity endorsement of a product or brand requires a lot of endorsement fees, which are not what the star thinks: they are paid by the merchants themselves. In fact, this cost is ultimately included in the price of products or services, and ultimately paid by consumers. Therefore, although celebrity spokespersons confiscated consumers' money, they did not make products or even sell products. According to the existing legal system, technically, there is no legal relationship between celebrities and consumers. Since there is no legal relationship between the two, there is no need to bear legal responsibility. In other words, celebrity endorsement has caused public criticism, which is only a moral issue rather than a legal issue. However, the consistency of interests and risks is the basic principle of law, and the high endorsement fee corresponds to almost no legal responsibility, which obviously violates the purpose of law. The application conclusion of legal technology deviates from the internal spirit of legal principles and cannot show the rationality of reasoning based solely on legal technology.
This first involves the theory of legal adjustment object in jurisprudence. It is generally believed that the regulation of law on social life is not endless, and the law must respect social norms such as morality and religion. This is true, but there are overlapping fields between law and morality, and some major moral issues related to public welfare often rise to legal issues. According to the principle of consistency of interests and risks, this is not only the minimum business ethics, but also the basic legal spirit. We should not just let it be under the control of complete commercial logic, but should bring its behavior into the scope of legal adjustment, and seek the equality of rights and obligations and the balance of interests and responsibilities in the design of specific norms, which is justified in theory and reasonable in fact at the moment when star advertisements are flooding.
Second, what kind of legal responsibility does the celebrity endorsement bear?
The 7th meeting of the 11th NPC Standing Committee passed the Food Safety Law of People's Republic of China (PRC) with a high vote of 158, 3 against and 4 abstentions. Article 55 of the law clearly stipulates: "If a social group or other organization or individual recommends food to consumers in false advertisements, which damages the legitimate rights and interests of consumers, it shall be jointly and severally liable with the food producers and operators." This article establishes the joint liability of false advertising spokespersons in the food field. However, the Food Safety Law is a special law after all, and its scope of application is relatively limited. In addition, the legal provisions on celebrity endorsement in China are almost blank.
Based on this, the author advocates a specific review from the perspective of civil law. There are two main types of relative legal relationship between civil subjects: contract and tort. According to the contract law, the core element of a contract is the expression of will, and its establishment is the agreement of offer and acceptance, but the essence of celebrity endorsement is very different from that of a contract. First of all, the star and the specific consumer do not belong to the other side of the contract, and the subject is not qualified; Secondly, celebrity endorsements do not have the factor of meaning expression, and there is no intention to form a legal relationship with consumers; Furthermore, celebrity endorsements are released to an unspecified public through the media, which is inconsistent with the characteristics of offers for specific relatives. So does celebrity endorsement apply tort law? Infant renal failure caused by tainted milk powder belongs to the product liability of specific infringement type, and the legal liability subjects are manufacturers and sellers. Literally, celebrity spokespersons are not among the responsible subjects. According to the principle of "those who have no clear law are not responsible", it seems that there is no way to criticize celebrities in law.
The author thinks that law has obvious lag characteristics, and moral adjustment alone is not enough to safeguard the rights and interests of most people. We can't let the celebrity's endorsement of the problem product be free from legal responsibility. However, there are also some problems in the remedy of infringement: if it is general infringement, even if there are defective products, it will have harmful consequences to the public, but this consequence seems to have no causal relationship with celebrity endorsement, so it does not belong to general infringement, and there are obviously no such provisions in several special infringement clauses.
However, the endorsement behavior without asking whether it is good or bad makes fake and inferior products popular and more toxic for the benefit. For the purpose of damage control, celebrity endorsements should bear certain "quasi-tort liability". We can solve legal and technical problems by expanding the interpretation.
1. Extended explanation of this topic. In the flood of endorsement advertisements, we find that there are not only stars, but also so-called experts and scholars in the fields of food and medicine related to human health. If it is confined to the narrow field of stars, it is obviously impossible to achieve good regulatory results. Therefore, we should make an expansive interpretation of "star" as a public figure who is well known to the public and can play a certain guiding and suggestive role in people's psychology.
2. Through the purposeful expansion and explanation of product liability norms, the endorsement behavior is regarded as "quasi-sales behavior". This statement is by no means absurd. First, it takes time to accept endorsement according to business rules, but when there is an accident in the endorsement product, moral asylum is invoked. This double standard violates the principle of "interests and risks are consistent". Second, the high endorsement fee means that stars have a high duty of care for product defects, and stars should have a certain foresight of possible product responsibilities when endorsing. Third, celebrity endorsement behavior belongs to indirect harm behavior. Since mankind stepped into the information society, stars have penetrated into social life and attracted public trust through various media. There is no denying that their endorsement behavior induces or forces consumers, and the indirect causal relationship between celebrity endorsement and product damage is gradually recognized in social concepts. It is also an intermediary behavior with reasonable credibility, and celebrity endorsement should also be brought into the vision of tort law with the times.
3. Implement the principle of different responsibilities for celebrity endorsements. According to the theory of tort in law, it is obviously too heavy to clearly stipulate that advertising for others will of course bear joint and several liability. We must also note that in product liability, the roles and status of stars, manufacturers and sellers cannot be treated equally after all. It is believed that the responsibility of advertising spokespersons for product quality should be different from that of manufacturers, and stars should bear corresponding negligence responsibilities, which may lead to stars bearing the responsibility of manufacturers, so they should bear "differential responsibilities".
This kind of "differential liability" should expand the legal liability of advertising endorsement to absolute liability, strict liability or no-fault liability, not just "negligence liability". The "joint liability" stipulated in the Food Safety Law still belongs to the category of "negligence liability" in civil law.
First of all, in my opinion, the subjective mentality of a star should be distinguished, and the legal liability should be defined in detail according to the closeness of the products he (she) endorses to people's rights or the different advertising targets, rather than the "corresponding fault liability" in the general sense. Generally speaking, food and medicine directly affect our right to health and even our right to life. For advertising spokespersons of such products closely related to life and health, the law should stipulate that they should bear "absolute responsibility, strict responsibility and no-fault responsibility" in order to conform to the principle of "balance between profit and loss". From this perspective, the "joint and several liability" stipulated in the Food Safety Law is still a little light, not too heavy. Is this too strict? It is not strict at all. Some countries should bear criminal responsibility for food endorsement, while some countries prohibit drug advertising.
Secondly, we should also consider the problem from the perspective of the advertising target and implement differential responsibility. For example, the responsibility of advertising for children or the elderly should be increased. This principle is applied in many countries. This difference should also be corresponding in the specific way of taking responsibility. For example, the responsibility of endorsing underwear ads should be more important than the responsibility of endorsing coat advertisements. Similarly, the responsibility to endorse cosmetics advertisements that have close contact with the skin should be more important than the responsibility to endorse other products that have no contact with the human body.
If there is no fault, it should bear limited supplementary liability within the scope of actually obtaining the endorsement fee, and this liability will only be triggered if the manufacturer, seller or insurance company (if there is liability insurance) is unable to compensate. From the perspective of rational distribution of responsibilities, it is more reasonable than the idea of comparing product responsibilities.