When a dispute arises, especially in an intellectual property related dispute, battles on social media usually come before battles on court, which sometimes are more hurtful to the normal operation of the affected company’s business. For example, a competing company posted an article alleging that a client of Glinks infringed its trade secret and the public security bureau had formally started a criminal investigation proceeding against such infringement, which however in the view of this client was not true. Due to this post, this client’s customers ceased to enter into contracts therewith, and the investors thereof postponed the payment of investment funds. Glinks represented this client to sue the competing company.Under such circumstance, the cause of action “commercial defamation” is the most popular legal tool for the affected company to protect itself. We usually claim for an order to delete (i.e., a permanent injunction), an order to apologize and the grant of monetary compensation, among which “the order to apologize” is technically the most complicated one.
1.How to Draft the Claim for an Order to Apologize on WeChat
First of all, we need to make clear the platform of such apology. Under the law, the way of apology shall have the same scope and effect of dissemination as that of the way how the infringing article is posted. Therefore, if the infringing article is posted on WeChat, in the claim we shall make clear that the apology shall be posted on WeChat.
The second element of the claim is the length of duration during which the apology shall be posted. The court usually will support 3 ~ 7 consecutive days so that the public shall have sufficient time to get access to and read the apology.
In addition, there are two tricky matters.
A. Post Only vs. Post & Push. On WeChat, an article can be “posted (发布)” on an account in which case if you forward this article to your WeChat contact on a private basis, your friend is able to open and read it from his conversation interface with you, but the followers of this account will not be able to receive any message reminding them that this article has been posted and this article will not stay on (and cannot be viewed and opened from) the historical messages of this account, unless it is “pushed (群发 or 推送)” to the followers of this account. Therefore, if you want to have more people read this apology and ensure the wide dissemination scope of this apology, the Judgment needs to order the defendant to “post & push” the apology. Some defendant will not “push” the apology so long as the Judgment does not explicitly include the “push” requirement, to intentionally prejudice the enforcement effect.
B. Stick on Top (置顶). In most commercial defamation cases, the plaintiff has the right to require the defendant to stick the apology on top of all historical messages. However, some defendants may refuse to do so by arguing that WeChat does not have a function in the name of “stick on top”. This is true, but WeChat has a similar function called “Selected Message (作者精选)”, and all selected messages will stick on top of all historical messages. In the Glink’s case we mentioned above, the Judgment only orders the defendant to “stick on top” the apology, but when enforcing the Judgment, the court officially enquired with WeChat about this requirement and ruled that the function of “Selected Message” was “stick on top”, based on which the court denied the defendant’s motion not to enforce and ordered the defendant to implement the requirement of “stick on top” through the function of “Selected Message”. That said, it should be better if the Judgment itself can clearly and accurately state the correct name of the relevant WeChat function.
It is worth noting that “Post & Push” and “Selected Message” are two separate and different functions, i.e., a message that is “pushed” to its followers may not be put on top, and a “selected message” that is put on top may not be “pushed” to its followers, therefore, in order to maximize the scope of readers, it is recommended to include both requirements in the Judgment.
2.Legal Tools Usable to Enforce the Order to Apologize
As a matter of practice, the wording of the apology will be subject to the plaintiff’s reasonable review and comments, and will also be subject to the court’s review before being posted to ensure the apology can satisfy the purpose of the Judgment. For example, in the Glink’s case above, the defendant, when drafting the apology, added a lot of irrelevant information so that the apology itself had in fact become a second-time defamation. After the plaintiff’s motion to revise, the court ordered the defendant to revise the wording of the apology.In case the defendant continues to refuse to post the apology, “substitute enforcement” is usually used by a court to enforce an order to apologize, i.e., recognizing the fact that the court, technically, is not able to directly log on the defendant’s WeChat account to post and push the apology, the court will post the Judgment on a newspaper operated by the court system as a substitute, after which the order to apologize will be deemed to have been enforced. Many plaintiffs are not satisfied with such approach because the number of readers of the court-run newspaper is very limited and the people in the relevant industry will not have a chance to get access to it.In the Glink’s case we mentioned above, we explained the law and successfully persuaded the court to subpoena the legal representative of the defendant to come to court to commit the performance of the Judgment. After that, the defendant tried its best to evade the Judgment, e.g., (1) it posted the apology in the exact wording approved by the court but in the meantime posted another article repeating the defaming wording (the purpose of which is to argue that the apology can clear the performance of the existing Judgment but whether the second article is infringing or not shall be subject to the ruling of another case which shall not be decided in the enforcement of this case), while the court ruled that the law shall not be a game and must be respected, and such way of apology is not acceptable and shall not be deemed as a valid apology; (2) it did not push the apology to its followers and argued that due to the plaintiff’s complaints submitted to WeChat, WeChat had officially limited its “push” function, so that its failure to “push” the apology was not an intentional act, while the court enquired with WeChat in a formal way and was replied that during a particular period, WeChat did not limit this account’s “push” function. At last, the court found the defendant and its legal representative in contempt, who then may be subject to a huge amount of fine and personal detention.
作者：钟佳康
