The newly adopted Civil Code clearly puts forward the concept of "virtual property" in the "General Provisions" section, pointing out that "if there are provisions on the protection of virtual property of data and network by law, such provisions shall prevail."
Xinhua Viewpoint reporter found that in the current judicial practice, the protection of virtual property still needs reform and continuous exploration.
The scope of virtual property is getting wider and wider.
With the closer connection between the Internet and the real world, the scope of virtual property is gradually expanding. In addition to platform accounts directly related to money, such as Taobao or Alipay, such as mobile phone accounts, official WeChat accounts, Tik Tok, virtual currency, and even data stored in the cloud, it also has certain asset attributes.
-Online stores and trading accounts, game accounts and virtual currency. "Since I went to college, I have been playing all kinds of large-scale online games, and I have also invested a lot of money to buy game equipment. In the first half of last year, my game account sold for 4,000 yuan as soon as it changed hands. " Ms. Wang, a citizen of Nanchang, Jiangxi, told reporters that she knows many friends who have game accounts worth 10,000 yuan, and some even specialize in selling game accounts.
Lawyer Zhang of Fujian Yingkun Law Firm believes that game accounts, online stores and virtual currency. Although it only exists in virtual space, it has certain use value or transaction value objectively and should be regarded as virtual property.
—— WeChat official account, Tik Tok and other platform accounts with public communication attributes and a certain amount of "fans". "Traffic is cash", and public communication accounts with a certain number of "fans" have the ability to "realize traffic", so they should also be regarded as virtual property. The reporter learned from the public relations industry that at present, Tik Tok, a beautiful woman with about 654.38+0 million "fans", has released a short video with advertisement implantation at a price of about 654.38+0 million yuan; A WeChat official account with about 1 10,000 followers costs about 50,000 yuan and 30,000 yuan for advertisements pushed in headlines and non-headlines respectively.
—— Data stored in the cloud or on devices. In the era of big data, the data information stored by some enterprises in the cloud or devices has certain economic value and should be recognized as virtual property.
The reporter's investigation found that with the rise of emerging Internet platforms, the scope of virtual property has gradually expanded, and there are more and more problems of legal protection. For example, how to inherit virtual property and how to determine the division of virtual property between husband and wife in divorce proceedings are difficult to solve in judicial practice at present.
What are the obstacles to the inheritance and protection of virtual property?
The reporter learned in the interview that the types and application scenarios of virtual property are becoming more and more abundant, but the corresponding legal system construction has not kept up.
-Some Internet platforms have long used the "overlord clause" to restrict users from protecting virtual property, but there are still difficulties in identification and cross-examination in judicial practice. "The ownership of the user's account belongs to this platform" and "the legal responsibility caused by the lending, disclosure or misappropriation of information such as account number and password shall be borne by the user himself" ... This is the content of the user service agreement of an Internet platform. The reporter's investigation found that many Internet platforms have similar "overlord clauses", and most of these clauses are "non-negotiable", which puts users in a serious unequal position and poses great obstacles to users' rights protection in the future.
-The legality of some virtual properties needs to be further clarified. Take the rise of virtual currency in recent years as an example. According to the Notice on Preventing Bitcoin Risks issued by the Ministry of Industry and Information Technology and the former "Three Meetings" 20 13, Bitcoin is a specific virtual commodity and does not have the same legal status as currency. Xiao Sa, director of the Bank of China Law Research Association, said that if the current laws and regulations do not recognize the legality of a certain type of virtual property, it will be difficult for such virtual property to be protected by law when it is pursued or inherited.
"Two years ago, my game equipment worth nearly 2,000 yuan was cheated when it was sold on a second-hand trading platform. After reporting to the platform customer service staff, they said that they could not check and protect the transactions of virtual products. " A gamer told reporters, "Even if I send the chat record with the other party to the customer service staff, it won't help, and then it will go away."
-The essence of virtual property is still cloud data, and it is difficult for rights holders to prove it in the process of safeguarding rights. Xiao Sa and other legal professionals believe that when the court determines that the virtual currency or props in the user's account are "goods or services purchased for the needs of life", the user applies the situation of "inversion of the burden of proof" in the Consumer Protection Law. However, if the court finds that the relationship between the platform and users is not "operator and consumer", users need to prove that "the virtual property is lost due to the responsibility of the platform", which objectively increases the cost of rights protection for users in virtual property protection.
Virtual property protection still needs to "build a wall"
It is understood that some countries have precedents for successfully inheriting virtual property. 2065438+July 2008, the German Federal Supreme Court ruled that a mother applied to inherit the account of her late daughter's online social platform, and ruled that the account was part of the inheritance, so the mother could inherit the account.
People in the legal profession believe that more and more virtual property is an inevitable trend in the future society. Judicial organs and relevant departments should further improve relevant regulations and promote the protection of virtual property.
Wang Xinrui, a senior partner of Beijing Anli Law Firm, said that the standard clauses drawn up by the platform, such as obviously unfair, to exempt or reduce their own responsibilities should be deemed as invalid clauses. "For example, the agreement that' the legal responsibility caused by the account being stolen by others shall be borne by the user himself' may be deemed by the court as the platform unreasonably exempting it from its responsibility for the security of the user's account, and the relevant provisions may be deemed invalid." Industry insiders suggest that the relevant regulatory authorities should conduct a special inspection of the format contract of the Internet platform, inform the society of the provisions that do not meet the requirements, and require the platform to rectify within a time limit.
Zhao Zhanling, deputy director of Beijing Zhi Lin Law Firm, believes that although most Internet accounts stipulate that users only have the right to use and have no ownership, from a legal point of view, the right to use online accounts can also be regarded as virtual property. He suggested that the legislature and the judiciary can continue to explore the specific scope and nature of virtual property in the future, thus providing guidance for specific judicial practice.
In addition, some experts suggest that crimes against citizens' virtual property should be treated as property crimes. "In the current judicial practice, some cases show that when a user's virtual property is infringed, the court will determine that the behavior belongs to a computer crime rather than a property crime, which leads to a certain probability that the owner of the virtual property cannot recover the lost or stolen assets." Gao Yandong, director of the Internet Law Research Center of Guanghua Law School of Zhejiang University, said.