How to defend rights when being infringed by charging treasure assassins？
Sharing the charging treasure solves people’s "power anxiety" about their mobile phones when they go out. However, with the continuous expansion of user scale and usage scenarios, problems such as high price of shared charging treasure, bad loan and charging after return have also become "pain points" for consumers, and charging treasure "assassin" has become a hot topic. Then, how should users who are infringed by shared charging treasures protect their rights?
Chaos 1: the rental fee for several hours is worth the new purchase price.
Nowadays, the rental price of shared charging treasure is generally rising, and there are often problems such as slow charging, even inability to charge due to insufficient power, damage to charging treasure and difficulty in returning it.
From the legal point of view, consumers rent the shared charging treasure by scanning the code and confirming the lease, which is to conclude a lease contract with the shared charging treasure operator through the network, and the legal relationship of the lease contract is formed between the two parties. According to Article 708 of China’s Civil Code, the lessor shall deliver the leased property to the lessee in accordance with the agreement, and keep the leased property in line with the agreed purpose within the lease term, that is, the lessor has the obligation to rent. At the same time, Article 496 of the Civil Code stipulates that if a contract is concluded with standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties. In addition, Article 10 of China’s Consumer Protection Law stipulates that consumers have the right to fair trade. When purchasing goods or receiving services, consumers have the right to obtain fair trading conditions such as quality assurance, reasonable price and correct measurement, and have the right to refuse the compulsory trading behavior of operators.
Therefore, the shared charging treasure operator, as the lessor, should ensure that the charging treasure it provides can be used normally. If the consumer cannot use or return the charging treasure normally due to the operator’s reasons, the expenses arising therefrom shall be borne by the operator. Otherwise, the operator may constitute a breach of contract and infringe on consumers’ fair trading rights.
Chaos 2: Still charge after return
At present, there are still many kinds of charging chaos in the shared charging treasure market. The problem of "charging after returning" has become the hardest hit area for complaints in the field of shared charging.
As mentioned above, the shared charging treasure operator and the consumer form a lease contract relationship, and when the consumer finishes charging and successfully returns the charging treasure, the lease contract between the two parties is terminated. At this time, the shared charging treasure operator no longer has the legal basis for charging the rental fee, and the continuous charging caused by the failure of its internal equipment or system does not display the successful return information. If the rental fee is still charged to the consumer, according to Article 11 of the Consumer Protection Law, the consumer has the right to compensation, and the operator shall return the overcharged fee and compensate the renter for the losses incurred.
The Consumer Council of Shenzhen has conducted a related survey on multi-brand shared charging treasures, and the results show that 95% of the sharing charging treasures have not reminded consumers of the charging standards in a significant way. The price displayed when scanning the code for renting is inconsistent with the charge price when returning it, which is also one of the key points for consumers to vomit. However, the behavior of sharing charging treasure operators unilaterally changing the rental charging standard is suspected of violating the original lease agreement with consumers and infringing on consumers’ right to know. According to the relevant provisions of the Civil Code, the change of a contract must be agreed by the parties before it can have the corresponding legal effect. When the operator of shared charging treasure wants to change the charging rules, it needs to make a public announcement in advance according to the legal requirements, and take reasonable measures to remind consumers to pay attention and obtain the consent of the other party. Otherwise, the change of terms will not have legal effect on consumers, and the operator’s unauthorized change of charging rules and deduction of fees constitute a breach of contract. At the same time, according to the provisions of Article 8 of the Consumer Protection Law, consumers have the right to know the real situation of the goods they buy or use or the services they receive. Consumers have the right to request business operators to provide relevant information such as the price of goods or the cost of services according to the different conditions of goods or services.
Chaos 3: the proliferation of false pop-up advertisements
There is also the problem of the proliferation of false pop-up advertisements in the shared charging treasure: after scanning the code when using the shared charging treasure, Wang pops up the lottery interface of "charging and scratching". After he clicks on the prize and fills in his personal information, the page pops up the prompt of "You have purchased successfully". After asking the customer service, it was known that the personal information he submitted was deemed to have purchased the corresponding prize. In addition, when charging, some consumers have encountered an advertisement to push "enter the mobile phone number to receive high insurance for free", but after entering the phone number and personal information, they were "purchased" without knowing it, resulting in automatic monthly deduction and other fancy scams.
According to the provisions of Articles 6 and 16 of the Measures for Punishment of Infringement on Consumers’ Rights and Interests, the information provided by business operators to consumers about goods or services shall be true, comprehensive and accurate, and they shall not mislead consumers by false or misleading propaganda, otherwise it will be considered as fraud. Article 148 of the Civil Code clearly stipulates that one party has the right to request a people’s court or an arbitration institution to cancel a civil juristic act committed by the other party against its true meaning by fraudulent means. Accordingly, the above-mentioned acts of deceiving consumers to buy goods or services in the name of free collection, or misleading consumers to shop with unclear and misleading propaganda expressions are all suspected of cheating consumers and infringing on consumers’ legitimate rights and interests such as the right to know. Consumers can request cancellation of the above-mentioned sales contracts and insurance contracts entered into by the sellers of related products or services by cheating consumers. At the same time, the Advertising Law also stipulates the contents of advertisements and their identifiability. Advertisers need to check relevant supporting documents and check the contents of advertisements according to laws and administrative regulations. Advertisers shall not publish advertisements with inconsistent contents or incomplete supporting documents.
Therefore, as the publisher of pop-up advertisements, the shared charging treasure business enterprise has the obligation to review the content. If it fails to fulfill its obligation to publish false advertisements, or knowingly publishes and recommends false advertisements, which constitutes fraud to consumers or damages their legitimate rights and interests, it will be jointly and severally liable with advertisers, and consumers can also choose to ask charging treasure operators to pay compensation in advance.
In addition, according to Articles 7 and 8 of the Interim Measures for the Administration of Internet Advertising, Internet advertisements should be identifiable and clearly marked with "advertisement"; Do not deceive users into clicking on advertising content. Article 5 of the "Regulations on the Administration of Internet Pop-up Information Push Service", which came into effect in September last year, also stipulates that third-party links, QR codes and other information that are maliciously diverted and jumped shall not be presented by pop-up information push, and users shall not be induced to click through the pop-up information push service to implement traffic fraud and traffic hijacking. Therefore, if the shared charging treasure applet tricks consumers into clicking on false advertisements by means of lottery, free gift, etc., it also violates the above measures and management regulations.
Chaos 4: taking personal information for profit
In the process of pushing false advertisements to users from the homepage of the shared charging treasure, operators often take personal information from users. Consumer Li once reported that after he successfully rented a brand shared charging treasure, the small program popped up a red envelope interface, guiding him all the way to the "Free Insurance" page, and he needed to fill in a full set of personal information such as his name, mobile phone number, ID number and address, and checked "I agree to get the insurance, and I have read the rules of the activity", but was later told that "if you meet the conditions for applying for insurance, the insurance company will contact you through the information you reserved."
According to industry insiders, the above-mentioned lottery advertisement is actually a false advertisement for taking personal information of users and selling it to insurance intermediaries. Advertisers will pay advertising fees to the operators of shared charging treasures according to the number of sales leads collected, that is, the number of personal information. Users who submit personal information may be frequently harassed by phone messages such as product promotion and insurance agents.
China’s Civil Code, Personal Information Protection Law, Consumer Rights Protection Law, Cyber Security Law and many other laws stipulate that the personal information of natural persons is protected by law, and no organization or individual may illegally collect, use, process or transmit other people’s personal information, or illegally buy, sell, provide or disclose other people’s personal information. Personal information should be handled in accordance with the principles of legality, legitimacy, necessity and good faith, and personal information should not be handled by misleading, fraud or coercion. Therefore, the operators of shared charging treasure push false advertisements containing misleading and fraudulent personal information to users’ pop-ups and provide them to insurance companies. It is illegal to illegally collect and use consumers’ personal information. If consumers suffer from privacy leakage or property loss due to filling in personal information in the above scenarios, they can ask the shared charging treasure business enterprise and the enterprise entrusted to publish the above advertisements to stop the infringement, eliminate the influence and even compensate for the losses. If the enterprise refuses to bear the corresponding legal responsibility, it can complain and report to the Consumer Protection Association, the market supervision and management department and the Internet management department.
In addition, consumers should be reminded that they should choose to rent a shared charging treasure with a good reputation as far as possible, and pay attention to carefully reading the user agreement, especially the charging rules and return rules, to ensure that they receive the prompt of successful return and fill in their personal information carefully. Once the rights and interests are damaged, it is necessary to keep relevant photos, audio and video evidence, actively safeguard their legitimate rights and interests, and promptly complain to the regulatory authorities or defend their rights. Text/Wang Xiaolu (Beijing Shijingshan Court)