Original title: Liquidated damages for failing to meet the requirements of live broadcast
Some college students fall into the contract trap and are trapped in the live broadcast room (theme)
Legal Daily reporter Zhao Li intern Zhang Botu
Luo Li, from the performance department of a university in Anhui, had just grown up and stood on the "cloud" - she got a three-month rental subsidy, had free live broadcasting equipment, became the head anchor of a live broadcasting platform dance area, and a big guild also threw an olive branch to her.
"Dance and the money will come. Don't ask your parents for living expenses. At that time, I thought everything was fine." Luo Li said that she didn't fall back to reality until the guild and the platform gave her the hat of "not meeting the contract" and carried on two lawsuits.
In December last year, Luo Li went on a hot search: "80 million female college students were claimed by XX platform." She is the main character.
Liu Xin, who once provided legal consulting services for MCN institutions (institutions specialized in providing services for online video creators), told the reporter of the Rule of Law Daily that although not every case is that large, his company will handle 300 to 400 disputes between MCN institutions and anchors every month, most of which are college students, They were claimed high liquidated damages by the institution for breach of contract.
The reporter recently found that for university student anchors, the length of live broadcast, signing contracts, etc. may be hidden traps. The inexperienced university students lack social experience and are easy to become the target of MCN institutions and associations to pursue claims for breach of contract.
The interviewed experts pointed out that it is urgent to improve the quality of practitioners in the live broadcast industry. It is necessary to regularly carry out vocational training for relevant heads of MCN institutions and standardize the rules for determining the duration of live broadcast; At the same time, employment guidance for college students should be strengthened to avoid unnecessary disputes.
Failure to meet the live broadcast requirements is claimed by the organization
In 2020, the live broadcast platform sent a lawyer's letter for the first time, claiming 80 million yuan; In January 2023, the platform sent the arbitration statement for the second time, and the claim became 6 million yuan.
Over the years, Luo Li has compromised and evaded. Finally, with the support of her family, she actively responded to the lawsuit and wanted to ask the guild and the live broadcast platform for an explanation.
Luo Li has always been unable to understand why the sky high liquidated damages can change from 80 million yuan to 6 million yuan. "After three years as an anchor, I actually earned less than 200000 yuan."
"The high cost of cultivating anchors based on the platform" - In the arbitration application, the live broadcast platform called it "the estimated promotion cost value of 2.91 million yuan" for cultivating Luo Li.
Li Yan, a lawyer from Hunan Business Administration Law Firm, has represented nearly a hundred disputes between the anchor and the Association. He told reporters that the anchor needs to work hard on the platform to broadcast, and as long as the platform provides a technical port for the anchor to start broadcasting, the obligations that the platform and the anchor need to perform are not equal. Even if the platform fulfills the contract, there is no high cost.
It is reported that Luo Li applied to the court at the end of last year to decide that the arbitration agreement of the live broadcast platform was invalid, so as to go through the legal process, but the application was not passed.
Qiu Nian, a senior at a university in Beijing, is also facing liquidated damages.
In the first semester of college, Qiu Nian was attracted by the information on the recruitment platform to recruit anchors. At that time, the pressure of schoolwork was low, and the MCN organization promised a minimum salary of 8000 yuan per month, which was a lot of income for her, so she signed the contract on the day of application.
Before signing the contract, Qiu Nian checked carefully and found that the contract period was three years. The contract stated that the live broadcast was five hours a day and 25 days a month. However, after the contract was signed, she was required to broadcast live for 6 hours a day, 26 days a month.
Qiu Nian's request to comply with the contract was rejected by the other party, and the contract has not been given to her. "After signing, MCN agency took the contract away on the ground of 'need to go to Shenzhen head office to seal'. Until I was sued, I didn't get the contract."
One year after the live broadcast, Qiu Nian could no longer meet the live broadcast duration requirements due to the school curriculum stress. After a period of time, she was sued by MCN and claimed more than 130000 yuan from her.
"It is difficult to complete the live broadcast duration set by the organization, and the liquidated damages are particularly high. If you cannot afford to pay, you can only continue to pay back the live broadcast, which is like a closed loop, where the anchor can never jump out," said Qiu Nian.
According to Qiu Nian, many college anchor colleagues were also prosecuted with her.
Li Yan has seen many similar situations in practice. "College students lack social experience and are easily deceived by bad MCN institutions. Many of the anchors who have contract disputes with the Association are female college students."
"Some MCN institutions will use a signing fee of 2000 to 3000 yuan as bait to recruit anchors. After signing the contract, they will send some cheap live broadcasting equipment to the anchors, and then supervise the live broadcast of the anchors. Once the anchors fail to meet the contract requirements and cannot be adjusted in time, the guild will demand compensation for the anchors' breach of contract," Li Yan told reporters.
The timing mechanism is unreasonable. The effective duration is not clear
Many interviewed college students reported that there are many live posts on job recruitment software. Their introduction is usually "no clocking, no talent, no work experience, free time", which is very attractive and they want to try it.
Mr. Zhang, who was once a star scout of a well-known entertainment company, said that he was "not surprised". "From the perspective of job requirements, it is clearly tailored for college students. As long as there are earphones and mobile phones, live broadcast can be carried out. After signing the contract, someone will be responsible for training, drainage and resource docking."
He worked in an entertainment company for more than a year and recruited more than 100 entertainment anchors, 90% of whom were college students. "The job requirements for college anchorman are generally regular and quantitative live broadcast every day, ranging from a few hours to more than ten hours."
However, the so-called "timing and quantification" is the first "thunder" in Luo Li's career as an anchor.
Luo Li noted that the contract requires that the minimum effective live broadcast days per month be 24 days and the minimum effective live broadcast duration be 120 hours. She asked the relevant person in charge that she still had to take classes, and what if she couldn't fill the broadcast? The other side explained that they would not really be so harsh on the students at school, just broadcast for one or two hours every day; As for the three-year contract period, as long as you don't change jobs to other guilds, you can stop broadcasting.
However, the pressure of "prosecution" brought by the platform later dissipated these verbal promises.
Li Nan was also trapped in the studio because of the length of live broadcast.
MCN institutions promise to support Li Nan's professional training, content planning, live broadcast technology and operation guidance, with a minimum salary of 6000 yuan per month, provided that Li Nan has at least 26 live broadcast days per month, and the live broadcast time is not less than 6 hours per day. 10% of the revenue from Li Nan's live broadcast is owned by MCN institutions.
One month after the live broadcast as required by the contract, Li Nan did not receive a basic salary of 6000 yuan. The reason given by MCN was that Li Nan did not have enough effective live broadcast time.
"I don't know how they think 'effective' is. Every time I live, I take it seriously. There is no 'water' for a long time." Li Nan said that after a long negotiation with MCN, she cancelled her live broadcast account and vowed not to be a host again.
The reporter found that the extra long live broadcast duration is very common in the contract between MCN agencies and anchors.
An insider said that in different contracts, the standard of live broadcast duration and effective live broadcast duration is not consistent, but "insufficient effective live broadcast duration" has become one of the common reasons why MCN institutions refuse to pay the anchor guaranteed salary.
Zheng Jing, a junior at a college in Hunan Province, is an anchor. She tried to "explain" her broadcast duration with the guild, hoping to get the due reward. However, it is very difficult to provide evidence about working hours.
"When working at home, anchors often can only prove the duration of their live broadcast by means of WeChat chat records. However, the lawyer I consulted told me that the WeChat chat records alone cannot be used to reinforce other evidence, and their evidentiary force is weak and difficult to be accepted by the court." Zheng Jing said that once the conflict with the brokerage company enters the litigation stage, The signed anchor, especially the college student anchor, will be in an awkward situation of difficult proof.
Li Yan also found that there are often anchors who are deemed by MCN institutions to have two hours less effective live broadcast time in one day, or several hours less effective live broadcast time in one month, so they are deemed not to have enough broadcast time.
"The main reason behind this is that the timing mechanism is unreasonable. The 'effective days of live broadcast', 'effective duration of live broadcast' and 'live broadcast days',' live broadcast duration 'are not the same thing. However, when the agency signs the contract, it usually tells the anchor that six hours a day is enough, but actually these six hours are the effective duration rather than the live broadcast duration." Li Yan explained.
A number of college students' anchors pointed out to the reporter that it is not easy to make an effective live broadcast of six hours. It is necessary to quickly and accurately hit the audience's emotions, learn to catch their own stumps, and ponder their own scripts, makeup, live scenes, etc. It is difficult for college students who still have academic requirements to do so.
"So some college anchorman can only stick to it for a month or two, and then most of them choose to stop broadcasting. After stopping broadcasting, MCN will send a reminder letter to urge the anchorman to rebroadcast. If they do not continue broadcasting, it will be a breach of contract. Some anchorman cannot stick to it, and if they give up this line, they will face high claims." Li Yan said frankly.
The recruitment rules are in a tricky format and contain risks
In addition to setting traps during the live broadcast, some MCN institutions, in order to recruit anchors, "hang sheep's head and sell dog meat" on the post details.
According to Li Yan, in order to quickly recruit a large number of anchors, many companies will set the recruitment posts as "board games", etc. The job requirements are relatively simple. Once the application is successful, MCN institutions often use the words of "full recruitment" to resign new employees and transfer them as anchors, so as to entice job seekers to sign contracts with basic salary, live broadcast guidance and other routines.
"This kind of position is not demanding and most people are more interested in it. When applying for a job, college students should pay attention to screening information and sign a contract carefully," Li Yan reminded.
The reporter noticed that on a social networking platform, many netizens published exposure posts such as "Lightning Protection, Recruit Anchors in the Name of Personnel Commissioner", "Recruit Personnel, Actually Recruit Anchors".
Mr. Bai once worked in a media company in Zhengzhou, Henan Province, mainly responsible for recruiting anchors. He told reporters that the main channel of the company's "hunters" is Ditui. Colleagues responsible for offline recruitment go to the university town every night to find girls who meet the aesthetic standards of the live studio, "get close to these girls, and cajole them into signing up as anchors".
The reporter found that there are also some MCN agencies that extend their tentacles to the campus through intermediaries, and recruit college anchorman through the so-called "work study program" or "part-time recruitment".
"Some intermediaries promote the attractive prospect of the live broadcast industry to college students, promising high returns and a relaxed working environment. In fact, these intermediaries often have an interest relationship with the live broadcast company. For every successful delivery of a college student anchor, the intermediary may get a rebate of 1000 to 2000 yuan per person from MCN institutions. Some student anchors are introduced by their seniors and sisters." Li Yan said.
The signing of the contract also implies a lot of clauses that are not conducive to the anchor.
According to Liu Xin, the contracts of MCN institutions are often format contracts, or signed live broadcast cooperation agreements rather than labor contracts. Traps are often hidden in terms of cooperation duration, distribution method, etc. For example, in the column of cooperation period, there are clauses of automatic extension after the expiration of the agreement. In the column of the live broadcast account, the registration and real name authentication of the live broadcast account and the binding mobile phone number information are owned by the MCN organization, so that the anchor can leave the live broadcast account in the MCN company after default or termination.
"In the column of income distribution, MCN often converts the way of guaranteed income into the income sharing mode. This means that if the MCN agency and the anchor have agreed to give the anchor a minimum wage of 5000 yuan per month for three consecutive months, but once the anchor's share income in one month within three months exceeds the minimum wage of 5000 yuan, the MCN agency does not need to give the anchor a minimum wage in the next month. The settlement will not be made on a fixed date every month, in order to avoid labor relations. " Liu Xin said.
Also, the interviewed college student anchor said frankly that the "squeeze" of the guild was also breathless.
Chen Chang, a junior anchor from a college in Jiangxi, said that she would deduct 1000 yuan for a day off, and that going to the toilet during the live broadcast would also be approved. She signed a brokerage contract with the guild instead of a labor contract, which means the guild does not need to provide her with basic salary and benefits.
"The small guild has no resources to support me. My fans are less than 10000, so I have to avoid the broadcast time of the big anchor, get up at 6:00 in the morning, broadcast from 7:00 to night, and race against the traffic." Because of the unpopularity, Chen Changchang failed in the contest of Lianmai, and was punished for using lipstick or eyeliner to paint matchmaker moles and Wang Ba on her face. She mocked herself "like a clown". In the bullet screen, some people scolded her as a "beggar", and others brushed gifts to ask her to be a lover.
Enhance the threshold, strengthen the supervision, standardize the rules of time length
"Now we can open MCN institutions only by obtaining the business license. The cost of operation and violation is very low. If one institution cannot continue to open, it is OK to re register another. It is difficult to find out the risk information of such institutions through the enterprise information query platform." Li Yan said that from the perspective of regulating the development of MCN institutions, institutions should be required to, in addition to the business license, It also needs to obtain a commercial performance license to regulate its business behavior.
In Li Yan's opinion, it is urgent to improve the quality of industry practitioners. At least take the city as the unit, regularly train and educate the principals and brokers of MCN institutions to improve the professional quality and professional ethics of practitioners of MCN institutions. No matter who is in charge of the enterprise, shareholders or business brokers in the industry, they should abide by the law and reduce the occurrence of unfair claims against the anchors by taking advantage of contract loopholes.
At the level of college students' anchors, the interviewed experts believe that college students' employment guidance should be strengthened to improve their ability to identify the authenticity and legitimacy of companies, business scope and job requirements.
"Instructors should provide effective guidance in the process of students' employment, such as systematically pointing out possible problems when signing a contract. Do not sign a contract easily, but remind students to pay attention to the traps and potential risks in the contract to avoid falling into unnecessary disputes." Li Yan said.
The insiders mentioned in particular that under the platform economy model, the platform takes "traffic" as the bait, and requires the brokerage company to make regulations on the live broadcast content and duration of its anchors, and generally presents the labor control strategy of "platform - intermediaries (brokerage companies) - workers (contract anchors)". Under this strategy, especially the college anchorman is very easy to fall into the dilemma of overwork.
Mr. Zhang, who once worked in a well-known entertainment company, said for example that the calculation rules of effective start time were not reasonable. In order to obtain a higher reward, brokerage companies often stipulate the duration of a single live broadcast of a signed anchor in the agreement. If the anchor does not broadcast for enough time, the working hours of that day will not be deemed as working hours. In this calculation mode, the working hours of the anchors will be lower than their actual live time, and it is difficult to exchange the labor remuneration that matches the labor payment.
"The live broadcast preparation time is also difficult to be recognized as working time. Before the live broadcast, the anchor should prepare the live broadcast content, and after the live broadcast, it needs to shoot videos to maintain the stickiness of his fans. These high-intensity creative activities outside of the live broadcast are difficult to be identified as working hours and cannot generate direct remuneration due to the fact that the work content is difficult to equate with the normal live broadcast and is too fragmented. " Mr. Zhang said.
Zheng Ning, the dean of the Law Department of the School of Cultural Industry Management of Communication University of China, suggested that the rules for determining the length of live broadcast should be standardized, and the classified analysis of labor activities outside the live broadcast should be made.
"The practice of the brokerage company that the live broadcast duration is invalid does not meet the requirements of the Labor Law for paying workers' wages in full and on schedule. In judicial practice, the court also found that the agreement was obviously unfair. The brokerage company can guide new anchors to continue live broadcast through flow support, bonuses and other incentive methods, but labor remuneration should not be deducted. In addition, when the live broadcast duration is linked to the labor remuneration, there will also be a situation where the anchor expects to extend the live broadcast duration. Labor activities such as live broadcast preparation activities, fan audio production, and participation in live broadcast platform activities should be considered as labor during working hours, and their activities show similar effects to labor during "standby time". " Zheng Ning said. (In this article, the interviewees are all pseudonyms)
