Interim Measures for the Administration of Internet Advertising (hereinafter referred to as "Do."After the introduction of the Law, the Hefei Municipal Market Supervision Bureau investigated and dealt with a large number of cases of online medical advertising in accordance with the newly amended Advertising Law. This case is a major practical exploration carried out by the municipal bureau through the combination of laboratory electronic forensics technology and law enforcement. Due to the multiple and complexity of advertising violations, promotional use of website media and search engines in this case, the aggregation and competition of illegal acts are intertwined, coupled with the complicated calculation of Internet advertising costs, there is also a greater controversy in the process of reconsideration, the difficulty of handling cases can be seen. It is for this reason that the law enforcement officials in this case on the Internet advertising violations of the identification and identification, advertising costs of the lock and the fixed electronic evidence of the useful exploration, are of great theoretical value and practical significance.
On April 5, 2018, the Hefei Municipal Market Supervision Bureau received a complaint about a hospital limited company suspected of defrauding consumers, and after verification found that the publicity content of the company's website was suspected of violating the provisions of the Advertising Law, it was investigated in accordance with the law.After investigation, the parties have the following illegal acts: First, in 8 websites through text or pictures and other forms of publication 2012-2013 Hefei City price integrity unit health insurance can be reimbursed Anhui Province medical insurance fixed-point unit Shanghai Charity Foundation for Hefei Thai licensing and use The promotion of 361,286 cases of rehabilitation patients witness, casting the people's excellent reputation and other content, in violation of article 4 of the Advertising Law, Article 28 (1), paragraph 2 (2) (4) (v) provisions, The act of publishing false advertisements involves the publication of false advertisements at a total cost of 564438.34 yuan; After the results of Premier Zhou hoped that Lu Wei can promote the treatment methods throughout the country and other content, in violation of Article 9 (2) of the Advertising Law, constitute the publication of illegal advertising behavior; The coefficient of up to 99.76 percent and other content, in violation of article 16 of the Advertising Law, paragraphs 1 (1) and (2), constitute the act of publishing illegal advertising, involving the publication of illegal advertising costs of RMB 19650.36.On January 16, 2019, the Hefei Municipal Market Supervision Bureau issued a decision on administrative punishment in accordance with the law, ordering the parties to stop publishing advertisements, eliminate the impact within the corresponding scope, and impose a fine of 2280,000 yuan; The party concerned shall be ordered to stop publishing advertisements and shall be fined 700,000 yuan, and the parties shall be ordered to stop publishing advertisements in accordance with the provisions of Article 58,1 (1) of the Advertising Law, and shall be fined 20,000 yuan for publishing content containing illegal advertisements containing "indicating cure rate or efficiency"; The case of the parties paying the fine was closed in September 2019.How should multiple ad violations be identified?Article 24 of the Administrative Punishment Law stipulates that no administrative penalty of more than two fines shall be imposed for the same offence committed by the party concerned, i.e. no further penalty shall be imposed. It is worth noting that the "same offence" should be accurately identified before the principle of "no more penalties for matters" is applied.In this case, the parties suspected of publishing multiple advertisements containing false and illegal content in multiple media, and paying for promotion through multiple search engines, law enforcement officials on the number of violations of the company's identification, that is, the company at the same time in eight Internet sites to publish the same advertising content should be identified as one or several illegal acts? Should the act of publishing different ad content on each site be considered one or several violations?The former State Administration for Industry and Commerce in the "how to identify advertisers and one and many times advertising violations of the answer" (Industrial and Commercial Guang word (2008) No. 89) made it clear that "in the administrative enforcement of advertising, in different media to publish illegal content of the same ads, or in the same media to publish illegal content of different advertising, should be recognized as several advertising violations." Although the document had been repealed, its spirit and content had become customary in law enforcement practice, and law enforcement agencies dealt with it in similar cases. Therefore, for the determination of the number of acts, it is necessary to determine whether the illegal content of the media or advertisements published is the same, and if there is a different act, the relevant acts need to be recognized as several advertising violations.Specifically to this case, law enforcement officials first from the parties in the search engine marked "advertising" for paid promotion links traced to their websites (including mobile), because the parties to a number of websites in search engine agents opened a separate advertising account to manage, so should be regarded as a separate Internet media. A number of websites of the parties in the same period of time alone or repeatedly published containing 2012-2013 Hefei City Price Integrity Unit Medical insurance reimbursable Anhui Province medical insurance fixed-point units Shanghai Charity Foundation for Hefei Thai licensing and other content of advertising, after sending letters to the relevant departments, identification, investigation, identified as false advertising. In view of the above situation, first of all, multiple ads with different content appear in multiple websites (media), which should naturally be considered several illegal acts. Secondly, the situation of false advertising with the same content appears in multiple websites (media), because the implementation of each behavior and its effects do not have an associated impact and independent of each other, so although the content and implementation time are the same, but can not change the nature of several separate violations, belong to the aggregation of several illegal acts. Third, the parties in the same website to publish different content of false advertising, although the violation is the same provisions of the Advertising Law (Article 28), but because the content of each false advertisement is different, the administrative relatives because of the illegal income obtained by each advertisement is also different, so the same nature of the publishing media can not change the nature of several of its acts, so the above situation can not be simply attributed to "one act". In the end, law enforcement officials sorted out several illegal facts about the parties according to the websites involved in various illegal acts.How can the aggregation and competition of violations be determined?The parties in the website at the same time to publish a number of violations of the provisions of the Advertising Law, such as the use of the name of the former leader of the state, absolute language, the use of efficacy and security assertions and guarantees, as well as the description of cure rate or efficiency, then, the relationship between several violations is aggregated or competing?The direct criterion for identifying or identifying the aggregation of illegal acts is to see if the illegal acts have independent legal responsibilities. According to the principle that illegal acts correspond to legal liability, acts with independent responsibility are independent illegal acts. For an illegal act with aggregation relationship, the nature of the illegal act shall be determined separately and its punishment shall be determined, and the punishment mode and penalty range shall be determined separately in the decision on administrative punishment, and should not be dealt with as an act in general.The competition of illegal acts is that the same act violates two or more laws of the same nature and produces different legal evaluations. Therefore, for the illegal act of competition, only one kind of liability can be held, and the law usually provides for the principle of dealing with the competing relationship.The case was discussed twice by the evaluation committee of Hefei Municipal Bureau, and combined with the opinions of lawyers, in the process of dealing with the aggregation and competition of illegal acts, according to the corresponding legal liability of illegal acts, website publishing and fee promotion, the competition violations follow the "heavy responsibility to absorb light responsibility" that is, "from a heavy penalty" penalty principle, for the aggregation of illegal acts are separately identified and punished, made the following identification and punishment:First, in view of the bad nature of false advertising, all promotional advertising costs will be calculated in total, in accordance with the provisions of Article 55 of the Advertising Law to be more than three times the fine. Second, for advertising content that contains absolute language and the name of the former state leader, the legal liability is a fixed amount of punishment, the parties in four media issued a total of 7 illegal advertisements, one media issued a number of illegal advertisements or published false, illegal advertising and contains propaganda in the name of the original state leaders, according to the "Anhui Provincial Administration for Industry and Commerce administrative penalty discretionary reference to the implementation standards" provisions from a fine of 700,000 yuan. Third, in response to the act of publishing illegal advertisements through three media, combined with the case in the course of processing found that the county district bureau has opened a case investigation, the city bureau to deal with the case, in line with the parties despite the existence of a number of illegal facts, and have independent legal responsibility,However, it also strictly follows the principle of "administrative punishment for not giving more than two fines for the same offence", and considers that two of the websites that have the cost of promoting advertising have been punished according to the "choice of weight" of false advertising, so only one illegal advertisement that does not involve false advertising media is fined.How should the responsibility of the paid search related party be determined?The paid search advertisement referred to in the Measures is an index of search links marked "advertising" on the search results page of the search engine service provider, which is usually composed of five parts: title, page description, link address (URL address), snapshot of the page and "advertisement" identification. Among them, the title, page description part of the essence of paid search ads, in the advertising law system called specific advertising content.The Measures provide that advertisers may publish their own advertisements through their own websites or Internet media with legal rights of use, or they may entrust Internet advertising operators and advertising publishers to publish advertisements. In this case, the parties in their own website design, production, release of medical technology, diagnosis and treatment methods of text, pictures and so onand through the signing of promotion contracts and technical service agreements with paid search agents, in a number of websites to open paid search promotion accounts to promote illegal websites, when consumers click on advertising, through the link to visit the site will generate advertising costs. Because the payment search is carried out by the way of agreement agent, the main qualification and content of Internet advertising is reviewed by the paid search agent, which belongs to the advertising operator, because it does not check the illegal content involved in the title and page description of the paid search advertisement index content, Hefei Municipal Bureau has also given the paid search agent the corresponding treatment.How to determine the cost of illegal online advertising?In this case, the calculation of Internet advertising expenses is very complicated, in the administrative review has also become the focus of controversy. At the hearing, the parties objected to the way advertising fees were calculated, requiring that advertisements involving illegal content be counted according to the number of clicks, and that the statistics be based on the business communication software statistics of third-party software companies. However, this requirement is contrary to the way the engine promoter with which it works is billed according to the click-through statistics of the link, at which the party pays for advertising.According to the Opinions of the General Administration of Industry and Commerce on how to determine the amount of advertising expenses of advertising operators in cases of illegal advertising, advertising expenses in practice include the full cost of design, production and release. In the case, law enforcement officials followed the principle of prudence and calculated only the advertising fees paid by the parties through search.How should electronic evidence of online advertising be fixed?In the course of investigating and prosecuting the case, law enforcement officials explore the practice of combining electronic forensic technology with law enforcement, and form a useful law enforcement experience.First, the source of the case was quickly found to be solidified. Network advertising forms are diverse and changeable, law enforcement officials found that illegal advertising should be the first time fixed evidence, the evidence quickly uploaded to the depository cloud and other depository equipment and terminals. If it is difficult to upload outdoors, you can also record illegal advertising content by video or image, etc. to prevent evidence from changing or losing. It is worth noting that the correlation of electronic evidence is particularly important. The whole process of collecting evidence should be recorded in the web page certificate, especially the electronic evidence of illegal advertisements on mobile websites (pages), which can be recorded by video recording. In this case, law enforcement officials overcome the difficulties of the depository cloud can not record paid search results, on the one hand, the suspected keywords, click into its official website and links to trace the illegal advertising content of the entire record printing, while recording the whole process of solid certificate. Because of the complexity of the case and the long time span of the violation , law enforcement officials have determined the period of their illegal act through the deposit of evidence on several web pages , providing strong evidence for the later calculation of advertising expenses .Second, on-site inspection of legal evidence. After entering the scene, law enforcement officials shall quickly control the computer involved in the case and keep it as is, and carry out the depository operation of the contents and operation process of the computer, and the documents and materials suspected of being related to the illegal advertising design, production and publication shall be recorded by the forensics personnel, and the inspectors shall make on-site examination transcripts to ensure the legality, authenticity, relevance and integrity of the electronic evidence. When collecting evidence on the spot, law enforcement officials in accordance with the provisions of the administrative punishment procedures, so that the whole process of law enforcement traces and traceable management, to ensure that the record of information is legal, effective, complete and complete.Third, data analysis attaches great importance to evidence. In the early parties refused to cooperate with the provision of relevant evidence, law enforcement officials through the forensic laboratory on-site forensic data for in-depth analysis, in its paid search of the company, accounts and paid electronic documents and other aspects of digging deep, and gradually combed out its advertising costs associated with illegal acts, but also further fixed the fact that it published false illegal advertising. The false advertising and other illegal contents that have been deposited many times in different periods in the previous period have been fixed by entrusting the Fujian China Securities Forensic Identification Center to issue the "Judicial Identification Opinion" in accordance with the law, which provides strong support for handling cases.Commentator: Director of the Advertising Department of the Shanghai Municipal Market Supervision BureauThis case is a typical Internet advertising case, the investigation and handling of the case covers multiple advertising activities, a comprehensive investigation of all the advertising content and behavior involved in the case, involving behavior classification identification, behavior competition or aggregation, advertising cost calculation, electronic evidence fixed and a series of Internet advertising cases to deal with the difficult issues. The reason why these problems are difficult is that advertising behavior is highly complex in reality, and it is very difficult to establish the criteria of judgment, which makes many case-handling organs often feel afraid of difficulties when they encounter disputes. The case office dares to face up to difficulties, in this case carefully distinguish, reasonable analysis, proper procedures, well-considered, and finally contributed to the country a classic case of Internet advertising.Reviewer: Wei Lin, Deputy Director of Advertising Department, Beijing Municipal Market Supervision BureauBecause each advertising campaign usually involves multiple legal subjects, in the process of law enforcement, the identification of each actor is the basis for the investigation of cases. The usual rules for handling cases are that the act of publishing the same illegal content in different media (different advertisers, same advertisers), or different ads with illegal content in the same media (the same advertiser, different advertisers) should be considered several advertising violations. The same violation of the law of the parties, whether it is in violation of the same law of many laws, or a number of provisions of different laws, according to the administrative punishment law, "no more penalties for the matter" principle, may not be given more than two fines of administrative punishment. This principle was followed in the course of the investigation of the case, and the evidence was taken by the solid evidence partyFace also used scientific and technological means, the case handling rigorous and careful, can be called a model.The writer is Wang Security Tang Xiaowen of the Market Supervision Bureau in Hefei, Anhui ProvincePublished in Market Supervision and Management No. 5 of 2020
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