Determination Of Liability For Breach Of Contract By Online Live Broadcast Marketing Platform Operators

In 2020,under the impact of the global new crown epidemic,online live broadcast marketing,which is often referred to as "live broadcast with goods",has become the most popular online transaction mode.Clarifying the civil liability of online live marketing platform operators is not only the need for consumer rights protection and fair justice,but also the need for platform companies to comply with regulations.The current mainstream view in academia and judicial practice is to characterize the civil liability of the platform operator as tort liability.However,such a single liability characterization ignores the valid contractual relationship between the platform operator and the consumer,and in some cases may increase the Difficulty for consumers to protect their rights.Therefore,it can be considered from the perspective of breach of contract liability to analyze the civil liability of online live broadcast marketing platform operators in transaction disputes.It is recognized that the civil liability of online live marketing platform operators has the dual attributes of breach of contract and infringement,and provides another way of thinking for consumers to protect their rights to ensure effective relief for consumers' rights and interests.When consumers register for a platform account,they can view the platform user agreement and privacy policy by themselves,and only click "read and agree" to successfully register an account.This process can be regarded as an offer from the platform operator to the consumer to conclude a platform service contract.,and the consumer clicks to agree to the offer,and a platform service contract relationship is established between the consumer and the platform operator.When determining the liability of the online live broadcast platform operator for breach of contract,the dual principle of attribution of fault and no-fault parallel should be selected,and a specific analysis should be made in combination with the special legal status of the platform operator.From the perspective of consumer rights protection,it is necessary to put forward some suggestions for improvement in the process of determining the liability for breach of contract by the online live marketing platform operator.First,the scope of the platform operator's liability for damages should be clarified,and the platform operator should give priority to the application.Liability for damages also excludes applicable punitive damages.Second,platform operators should limit the application of format exemption clauses.Third,platform operators should clarify the rights and obligations of the subject in the user agreement and set a certain degree of consumer review obligations to help consumers understand the user agreement.