“My restaurant doesn’t make much money in a year, and because I posted a video introducing the dishes on a short video platform, I’m going to be fined 450,000 yuan. Isn’t this penalty too frivolous?”
Huang Lan (pseudonym), the owner of a restaurant in Linyi, Shandong, was fined 450,000 yuan for a video of dishes she casually posted, which was deemed an “illegal advertisement.” She received a notice of administrative penalty from the Linyi Lanshan District Market Supervision Bureau less than 3 days after receiving a phone call.
By calling the public legal aid hotline, Huang Lan contacted lawyers Gong Hua and Zhang Tianzeng from Beijing Jingzhe Law Firm and received free public interest representation from the lawyers. On July 10, the Lanshan District Court approved the filing of Huang Lan’s case against the Lanshan District Market Supervision Bureau.
According to a report by “Zhijian News,” Huang Lan said that in February of this year, she posted a video of the dishes from her own restaurant on a short video platform. On March 22, she suddenly received a call from a staff member of the Lanshan District Market Supervision Bureau, saying that the video of her dishes was suspected of being an illegal advertisement and asked her to cooperate with the investigation. At that time, Huang Lan was at her mother’s home dozens of kilometers away, and she said on the phone that she would go to the Lanshan District Market Supervision Bureau for investigation within a week and deleted the video immediately.
Pictures of the dishes and ingredients that appeared in the video (provided by the person involved)
However, before Huang Lan could go for the investigation, on March 24, a “Notice of Administrative Penalty” was slipped through the door of the restaurant. The “Notice” stated that the restaurant was suspected of publishing advertisements for prohibited acts and that the person involved refused to cooperate with the investigation, and could be heavily fined, with a proposed fine of 450,000 yuan.
Notice of administrative penalty with a proposed fine of 450,000 yuan (provided by the person involved)
The video provided by Huang Lan shows that at the beginning of the video, there is a pot of soup, handwritten as “frog soup,” followed by various insect ingredients, and finally the appearance of the restaurant. There is no voice introduction in the video, nor are there price tags or purchase links.
Huang Lan said that when the law enforcement officers first contacted her, they mentioned that someone had reported her restaurant for illegally selling wild animals because of this video, but she said that the ingredients she used were all publicly purchased from the market and there were no wild animals at all. Moreover, what she posted was not an advertisement, but just a video of her daily life.
After receiving the “Notice of Administrative Penalty,” Huang Lan submitted a “Statement of Defense” and a “Hearing Application” within the prescribed 5 days. In the “Statement of Defense,” she stated that according to relevant laws and regulations, the video she posted was not an advertisement and there was no illegal behavior.
But for more than three months after that, the Lanshan District Market Supervision Bureau neither revoked the “Notice of Administrative Penalty” nor made a final penalty decision. Helplessly, she filed a lawsuit, requesting the Lanshan District Market Supervision Bureau to revoke the “Notice of Administrative Penalty.”
After receiving the consultation through the public legal aid hotline, lawyers Gong Hua and Zhang Tianzeng decided to represent Huang Lan for free. Lawyer Gong Hua told “Fadu Law” that the Lanshan District Market Supervision Bureau’s intention to fine 450,000 yuan was unfounded and unreasonable, “We decided to provide public interest representation in this case and take up the legal weapon to help the parties involved protect their legitimate rights.”
Lawyer Zhang Tianzeng believes that the person involved has never published advertisements for prohibited acts, and the person involved displaying photos and information about dishes through a personal account on a short video platform does not violate the provisions of the “Advertising Law.” According to the relevant provisions of the “Measures for the Administration of Internet Advertising,” the circumstances of advertising are limited to “promoting goods or services through knowledge introduction, experience sharing, consumer evaluation, etc., with attached purchase links” of commercial promotion behavior. The video posted by the person involved is intended to show daily life scenes and the restaurant’s operating scenes, which belongs to the legal scope of business operators truthfully disclosing product information as stipulated in the “Consumer Rights Protection Law” and should not be broadly defined as advertising. At the same time, according to the “Guiding Opinions on Regulating Commercial Marketing and Promotion” of the State Administration for Market Regulation, business operators objectively display product information through their own media, which does not constitute advertising.
Therefore, he believes that the “Notice of Administrative Penalty” issued by the Lanshan District Market Supervision Bureau is a factual error and the law is wrongly applied.
Lawyer Zhang Tianzeng also said that during the understanding of the case, he found that relevant personnel from the local government’s demolition department had intervened in the case, so the Lanshan District Market Supervision Bureau’s issuance of this “Notice of Administrative Penalty” also involved the suspicion of abuse of power.
The “Administrative Complaint” shows that the plaintiff stated that the reason for being punished was because a relative employee was involved in a demolition compensation dispute.
The plaintiff also believes that although the “Notice of Administrative Penalty” made by the Lanshan District Market Supervision Bureau is not the final administrative act, it has exceeded the 90-day administrative penalty period stipulated by the Administrative Penalty Law, and the penalty notice has already had a practical impact on the plaintiff, infringing upon the plaintiff’s legitimate rights and interests, and is justiciable.
The “Zhijian News” report shows that Wang, the contact person of the Lanshan District Market Supervision Bureau on the “Notice of Administrative Penalty,” did not respond positively to Huang Lan’s complaint, but instead asked to contact the bureau’s news department, but the media’s contact with the news department was also unsuccessful.
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Lawyer’s Interpretation
Regarding this matter, Lawyer Yang Yiqun of Beijing Cailiang Law Firm told “Fadu Law” that Huang Lan’s act of posting a video of dishes clearly does not violate the provisions of the Advertising Law, and even more so cannot be subject to a huge fine. The “Notice of Administrative Penalty” of the Lanshan District Market Supervision Bureau has no factual or legal basis.
“The Lanshan District Market Supervision Bureau probably also knows that the basis for the penalty is insufficient, so it only issued a notice and did not make a final decision for more than three months. Only giving notice allows for retreat and advance; making a penalty means the die is cast and responsibility must be borne.” Lawyer Yang Yiqun said.
Lawyer Yang Yiqun said that in the past, the source of most cases was generally the “proactive action” of the Market Supervision Bureau, but in this case, according to the plaintiff, the local Market Supervision Bureau was willing to act as a “thug” for the expropriation department. “Public power cannot become a ‘club’ for administrative departments to beat the people. It has to be said that the Lanshan District Market Supervision Bureau only ‘notified’ but did not punish, which is a clever move, both cooperating with the expropriation work and protecting itself. But the business environment does not need this kind of ‘clever move.'”
Lawyer Deng Qianqiu of Beijing Zhongwen Law Firm also analyzed to “Fadu Law” that the “Notice of Administrative Penalty” made by the Lanshan District Market Supervision Bureau is only a procedural document of administrative penalty and is not an administrative penalty decision, and cannot be used as the basis for a document to fine the person involved.
“Judging from the content of the notice, even if the Lanshan District Market Supervision Bureau determines that the video involved is an illegal advertisement and intends to impose a fine, the legal basis it cites is obviously not sufficient.” Lawyer Deng Qianqiu said that Article 9 of the “Advertising Law” does stipulate that advertisements shall not have “other circumstances prohibited by laws and administrative regulations,” but what laws and administrative regulations prohibit the person involved from uploading relevant videos? The notice is vague and lacks a legal basis.
“Furthermore, even if a fine should be imposed, according to the ‘Administrative Penalty Law,’ the determination of the amount of the fine also needs to be ‘commensurate with the facts, nature, circumstances, and degree of social harm of the illegal act,’ and should be determined comprehensively based on the degree of illegality of the video, the number of clicks on the video, the scope of dissemination, and the illegal benefits brought to the person involved, and it cannot be considered that it is appropriate as long as it is within the penalty range stipulated by law.” Lawyer Deng Qianqiu said.
Author｜Zhao Guo
Copyright Source｜Fadu Law
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