Court rejects, real estate company fined 500000 yuan for using air crash for marketing, but unexpectedly refused to accept the flight | Punishment | Court
On March 21, 2022, China Eastern Airlines Flight MU5735 crashed in Guangxi, killing all 123 passengers and 9 crew members on board.
However, it is in the face of such a major air disaster that some people use it for disaster marketing.
On the day of the air crash, a real estate company in Shanxi unexpectedly created a WeChat single image advertisement containing elements of a flight crash and sent it to a work group, requesting employees in the group to forward it. After the advertisement was published, it immediately fermented on the internet, causing serious negative social impact.
Subsequently, the Market Supervision Administration of Jinzhong City, Shanxi Province, imposed a fine of 500000 yuan on the involved real estate company.
The real estate company involved in the case surprisingly disagrees with this punishment decision and has taken the Jinzhong Market Supervision Administration to court!
On June 8, 2023, the Intermediate People's Court of Jinzhong City made a second instance judgment on this case, supporting the punishment decision of the Jinzhong City Market Supervision Administration.
It is understood that on March 21, 2022, Chen, the marketing planning manager of a real estate company in Shanxi, saw the hot news of the MU5735 flight accident of China Eastern Airlines. Together with Yue, the design specialist of the marketing department of the group company, they created a WeChat single image advertisement containing elements of the flight accident. Later, Chen posted a WeChat single image advertisement created in the name of the company on his personal WeChat Moments, and sent the advertisement to the work group, requesting employees in the group to forward it. After the advertisement was published, it immediately fermented on the internet, causing serious negative social impact.
After discovering illegal clues, the Market Supervision Administration of Jinzhong City immediately filed a case for investigation and ordered the real estate company to immediately stop publishing illegal advertisements, and required the company to conduct internal self inspection and rectification. On June 13, 2022, the Market Supervision Administration of Jinzhong City, after conducting preliminary evidence collection investigations and in accordance with relevant laws and regulations, decided to impose a fine of 500000 yuan on the company.
The company refuses to accept the punishment decision and applies for administrative reconsideration to the Jinzhong Municipal Government. After review, the Jinzhong Municipal Government made a reconsideration decision on August 15, 2022 to uphold the punishment decision of the Jinzhong Market Supervision Administration.
Afterwards, the company filed an administrative lawsuit with the People's Court of Jiexiu City in September 2022, requesting the revocation of the penalty decision made by the Jinzhong Market Supervision Administration and the administrative reconsideration decision of the Jinzhong Municipal Government, citing that the act of advertising was an employee's personal behavior, the application of the punishment decision was incorrect, the punishment procedure was seriously illegal, the punishment result was too severe, and it was not conducive to protecting the private economy.
In December 2022, the People's Court of Jiexiu City held in the first instance that the act violated relevant provisions of the Advertising Law, and the administrative penalty decision recognized the facts clearly, the procedures were legal, and the application of the law was correct. The administrative reconsideration decision of the Jinzhong Municipal Government should be revoked due to procedural violations. First instance judgment: Reject the company's lawsuit request regarding the punishment decision in question, and at the same time revoke the administrative reconsideration decision of the Jinzhong Municipal Government. The company appealed to the Intermediate People's Court of Jinzhong City against the first instance judgment.
The Intermediate People's Court of Jinzhong City, after trial, believes that according to the provisions of Article 3 and Article 9 (a) of the Advertising Law, advertisements should be truthful, legal, and in compliance with the requirements of socialist spiritual civilization construction and the promotion of the excellent traditional culture of the Chinese nation, and the content of advertisements should be expressed in a healthy form. Advertisements shall not obstruct public order or violate good social customs.
As the marketing planning manager of the company, Chen's job responsibility is to promote, market, and plan for the company. Chen not only posted an advertisement related to the case on his WeChat Moments, but also sent the advertisement to the work group, requesting employees in the group to forward it. Chen's behavior is considered a duty behavior for the company's interests, while the forwarding behavior of other employees is arranged by Chen. The company shall bear the corresponding responsibility of the advertiser for the behavior of its employees posting advertisements related to the case on their social media.
The crash of China Eastern Airlines Flight MU5735 is heartbreaking, and it is even more unexpected and devastating news for passengers, crew members, and their families on the flight. The public's attention to the event and sympathy for the parties and their families are sincere expressions of emotions and are protected by law. Although the advertisement of the company involved in the case has the intention of hoping for the safe return of family members, the upper right part of the advertisement has the name of the real estate sales project that the company is currently selling. The lower part of the advertisement indicates "Kuaojing Meizhai", "contact phone number, marketing center address, developer name", and "the images and content of this advertisement are for reference only. The rights and obligations of both parties are subject to the final approval and signing documents of the government." The advertisement in question is not an expression of concern during a social crisis, but a promotional act of commercial marketing that uses the public's attention to the crash of China Eastern Airlines MU5735 passenger plane. Objectively, it has caused emotional harm to the grief of the parties involved in the incident and their relatives and friends, as well as the sincere sympathy of the public, seriously violating the emotional harm caused by the incident. Upholding good social norms.
The second instance court, after trial, deemed that the facts of the punishment decision in question were clear, the application of law was correct, the procedure was legal, and the punishment was appropriate. Therefore, the above judgment was made.
