Legal Regulation of Head Anchors in Live-Streaming E-Commerce from the Perspective of Duty of Care

Abstract： The integration of the digital economy with the traditional sales industry has prompted the robust growth of e-commerce. Live-streaming e-commerce， as a novel business model， has gained immense popularity. However， issues of regulatory loopholes and inefficacy continue to surface. In live-streaming e-commerce， the head anchor， as host of the live-streaming rooms， wields significant influence in determining the goods to be showcased and marketed. Such influence expands risks such as infringement of intellectual property rights. Yet the uncertainty in law concerning the identity of head anchors results in a lack of accountability. Current norms are inadequate in constraining the group of head anchors. Drawing on the principles of risk control， the alignment between benefit and risk， and the theory of social cost control， this paper argues that it is both justifiable and feasible to impose a duty to exercise reasonable care on head anchors. To effectively enshrine this duty in law， it is of great importance to redefine the mechanism of identifying the duty of care of head anchors in live-streaming e-commerce. In particular， the contents of the duty of care undertaken by head anchors and the consequences of breaching such a duty of care should be clarified.

Keywords： head anchor; live-streaming e-commerce; digital economy; duty of care

CLC： D 911 " " " " " " " DC：A " " " " " Article：2096?9783（2025）02?0125?13

1 Introduction

The digital economy， a transformative economic paradigm succeeding agricultural and industrial economies， encompasses two forms： digital industrialization and industrial digitization[1]. The digital economy is crucial for constructing a modern industrial system[2]. The fusion of digital technologies with traditional sales has propelled the dynamic growth of e-commerce. Newly emerging models like video live-streaming have accelerated the prosperity of e-commerce， upgrading the level and capacity of digitization. China's online retail sales of physical goods hit 10.8 trillion yuan in 2021， accounting for 24.5% of the total retail sales of consumer goods[3]. Despite this， the regulatory system tailored for the development of digital economic models such as e-commerce calls for perfection， and so does the system for the effective governance of the digital economy[4].

Live-streaming e-commerce， as an emerging business model of e-commerce， is gradually developing its associated policy and regulatory framework. However， the associated policy and regulatory framework still fails to keep pace with the rapid advancement of practice， resulting in continuous occurrences of supervisory loopholes and failures. In the realm of live-streaming e-commerce， the issues of the role[5] and liability of head anchors are particularly prominent. China's E-commerce Law does not explicitly define the rights and obligations of head anchors. Where the \"benefits\" from infringement exceed the \"costs\"1， that is， the \"output\" surpasses the \"input\"， such behavior is deemed， from an economic standpoint， profitable， thereby significantly increasing the likelihood of product users committing acts of infringement[6]. The huge industrial profits have induced some head anchors to ignore legal constraints and choose to take risks， triggering large-scale speculative infringement phenomena. Incidents of head anchors being exposed for suspected 1 advertising， poor product quality， and intellectual property infringement while selling products are frequent. Despite the fact that in practice some infringement cases have been properly handled， both administrative law enforcement and judicial protection have proven to be excessively costly. Confronted with an overwhelming number of live-streaming rooms， current response models are somewhat inadequate. As rationally head anchors gradually gain more market discourse power and become the core subjects of this business model， rationally regulating of their sales behavior， imposing on them a reasonable duty of care， and preventing infringement have become the core issues in the governance of e-commerce order.

2 Straits in the Legal Regulation of Head Anchors in Live-streaming E-commerce

Italian economist Pareto observed in his study of national wealth and income patterns that 20% of people in society possess 80% of social wealth， a finding later named the \"Pareto Principle\" or the \"Law of the Vital Few\". From a graphical perspective， the few individuals who control the majority of social wealth and discourse power form the \"head\"， while those with less social wealth make up the long \"tail\". In the Internet era， various industries have gradually produced \"head\" segments， garnering more attention and resources[7]. The live-streaming e-commerce industry is no exception， with a clear \"head\" effect among the anchor group， where head anchors， who make up a single-digit percentage of the group， take away the majority of the entire profits. Head anchors are defined as those with a vast fan base， a wide range of business categories， or extremely high transaction volumes. For example， according to the internal classification standards of Douyin， anchors with over 5 million fans are considered head anchors. As the \"head\" segments of the industry， they are special online users with significant market influence and discourse power， whose commercial behavior of introducing and promoting products in live-streaming rooms to facilitate transactions expands the risk of infringement. Yet， current norms fail to effectively restrain their behavior.

2.1 Head Anchors in Live-streaming E-commerce Not Purely Advertising Spokespersons

Some scholars believe that anchors in live-streaming e-commerce should still be considered advertising spokespersons under Article 2 of China's Advertising Law and should assume the legal responsibilities stipulated in Article 61. However， in reality， there is a substantial difference between the legal identity of head anchors in live-streaming e-commerce and that of traditional advertising spokespersons.

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Figure 1 " "Flow Chart of the Commercial Operation of Live-Streaming Sale of Goods

First， the contracts signed between head anchors and merchants in live-streaming e-commerce are not endorsement contracts with obvious management characteristics. Live-streaming sales are no longer online sales in the narrow sense2， but rather a business model involving more legal relationships， entities， and acts. The entire business operation of live-streaming sales consists of two major stages， namely the early preparatory stage and the later online live-streaming promotion stage （Figure 1）.

In the first stage， the MCN organization reaches a product consignment sales contract with the merchant， determining the types and quantities of products to be traded in the live-streaming rooms under the MCN organization， and actively signs or incubates sales anchors. This mainly involves two legal relations： （1） the consignment sales relationship between the MCN organization and the merchant; and （2） the labor contract relationship or entrustment agency relationship between the MCN organization and the sales anchor.

In the second stage， sales anchors introduce and promote products online within the live-streaming room and complete sales through various promotional methods. This stage involves three legal relations： （1） the anchor fulfills the responsibility of introducing， publicizing， and promoting products or services in the live-streaming rooms; （2） consumers and merchants conclude online product transactions， forming sales contract relations; and （3） the live-streaming platform， as a network service provider， offers venues for the aforementioned transactions. Clearly， in live-streaming e-commerce， it is typically the MCN as an Internet celebrity agency that signs contracts with merchants， with terms of such contracts more inclined to consignment sales. Anchors introduce， promote， and sell products in live-streaming rooms per the MCN organization's directives. Mid-and tail-segment anchors， as employees of the MCN organization， are subject to the management and control of the MCN organization. They cannot decide which products to sell in the live-streaming rooms. They must also strictly follow the MCN organization's directives when introducing and promoting products. However， when these anchors gain sufficient traffic and strength to become industry heads， they evolve into a kind of \"brand\"， and their relationship with MCN organizations shifts from being managed to a more equal market standing. Many head anchors even partake in the management of their MCN organizations by becoming shareholders. In the era of live-streaming e-commerce， where the two stages of product promotion and sales are merged， head anchors have already shed the limitations of traditional endorsement contracts. This is a key distinction between head anchors and ordinary anchors， as well as a significant reason for the differences in their rights and obligations.

Second， head anchors in live-streaming e-commerce do not engage in mechanical performances based on a script but rather possess considerable decision-making power over the entire sales process. As the conveners and leaders of live-streaming sales， head anchors can largely determine When to begin and end， progress， types of products for flash sales， product prices， and flash sale rules of live-streaming events. If certain consumers and merchants engage in improper behavior or violate live-streaming room rules， head anchors can unilaterally \"punish\" them， such as unilaterally \"banning\" renowned brands or removing misbehaving consumers from the live-streaming rooms. For instance， in 2019， Li Jiaqi declared in a live-streaming room the \"permanent ban of Lanc?me\"; in November 2021， Li Jiaqi and Viya announced a temporary halt of cooperation with the L'Oréal brand. Whether establishing autonomy or unilaterally banning brands， these actions demonstrate that head anchors indeed possess real managerial and control capabilities within live-streaming rooms and have substantial discourse power over the products sold through live-streaming rooms. They can make choices of their own to a large extent， and if merchants maliciously sell infringing products， head anchors can immediately stop the live-streaming or even terminate cooperation ahead of time， effectively preventing malignant infringement incidents and addressing problems from the source.

Third， the income of head anchors in live-streaming e-commerce is directly related to the sales performance， which is the monetization of the personal value of the head anchors. Unlike the case of traditional TV sales， head anchors have a significant brand effect. The rationale behind the sales of head anchors， whether they are grassroots or crossover celebrities， is to transfer their existing social value and influence to the products or services being sold. By exerting their influence， head anchors enhance the appeal of the products or services on offer， igniting fans’ latent consumption desires， and thus increasing sales. In most cases， the main reason why many consumers choose certain products lies in their trust in head anchors[8]， believing in the high quality， performance， and cost-effectiveness of the products being promoted， and the absence of infringement risks. Oftentimes， once head anchors start live-streaming， the products they feature are quickly sold out. Their brand effect is equivalent to a \"giant\" amplifier， helping head anchors sell a large number of products， a task almost impossible for celebrity spokespersons to accomplish in the past. In traditional TV sales and other business models， the main reason for consumers to choose certain products is still the quality， cost-effectiveness， etc.， of the products themselves， rather than the trust in celebrity spokespersons. On the other hand， the income of head anchors in live-streaming e-commerce is closely tied to sales performance. The most common form of distribution plan in live-streaming sales is a pit fee plus commission， where the \"pit fee\" refers to the one-time cooperation fee that brands pay for purchasing fixed advertising spots in the live-streaming of head anchors， and \"commission\" refers to the share that head anchors receive for each product sold， with proportions varying based on different factors such as product category profits and anchor levels[9]. In addition， there are other forms of income， such as base salary for live-streaming， audience rewards， sales performance rebates， bonuses， etc.[10]， which are directly related to the overall live-streaming sales performance.

2.2 Expansion of Infringement Risks by Head Anchors' Promotion and Sales Activities

First， the live-streaming promotion behavior of head anchors is not time-limited， increasing the cost of detecting infringement. Most offline stores have relatively fixed business hours， with most transactions taking place during the day. However， the online sales activities of head anchors are not constrained by time， enabling them to live-stream at any moment to attract consumer purchases. Confronted with a multitude of live-streaming rooms and irregular live-streaming hours， unless right holders are privy to the live-streaming rooms and hours selling infringing products in advance， real-time monitoring is required. Such real-time monitoring is difficult to accomplish through manpower alone， and yet technologies like filtering and review have not matured enough to meet actual needs， leading to high costs in detecting infringement of head anchors.

Second， the live-streaming promotion behavior of head anchors is not limited by region， increasing the difficulty of government supervision. Traditional commercial sales have a smaller impact due to regional limitations. Even for offline stores with a very good reputation， the buyers who \"come for the fame\" are only limited to a certain square kilometer， such as a district， a city， or sometimes at most a province. It rarely attracts buyers from other provinces or even foreign countries. For this， to carry out comprehensive and effective supervision， the government divides offline sales according to geographical regions and adopts \"block\" management. However， the live-streaming of head anchors is not limited by region， and the market coverage is wide， making it difficult for traditional supervision modes to work well.

Third， the sales volume of head anchors by live-streaming is huge， expanding the consequences of infringement. Although infringement may also exist in both traditional store sales and TV sales， the damage is relatively controllable due to the small sales volume， and the recall cost is also low. However， the brand effect of head anchors is equivalent to a \"giant\" amplifier. Relying on fans' trust， they can sell a large number of products within a short time. Once infringement problems occur， due to the large number of products sold， it is difficult to recall them， and the large number of infringing products flowing into the market will cause great losses to right holders， consumers， etc.

2.3 Ineffectiveness of Existing Norms in Restraining Head Anchors' Live-streaming

The National People's Congress and the State Council have not included head anchors as objects of regulation in legislation. Live-streaming e-commerce has ushered in the anchor group and innovated the product sales method， representing a new form of e-commerce. However， because it's a relatively new business model， the existing laws and regulations， such as the E-commerce Law， have not yet included head anchors as objects of regulation. In the field of live-streaming e-commerce， although the Contract Law， which is now Book Three of China's Civil Code， and the Consumer Rights Protection Law can play a certain role， their regulatory effect on head anchors is quite limited. In the first place， due to information overload， emotional drive， identity transfer， information cocoons， and other reasons， the status of consumers and head anchors in live-streaming rooms is not completely equal. In the second place， head anchors selling counterfeit goods and conducting 1 advertising not only damage the rights and interests of consumers but also are detrimental to public interests.

Departmental rules and regulations are also silent on the mandatory obligations of head anchors. Industrial competition and profit motivation have given rise to many issues within the live-streaming business model. In recent years， China has enacted numerous departmental rules and regulations to regulate live-streaming e-commerce， such as the Administrative Measures on Online Live Marketing （Trial）. However， such legal instruments have not yet clarified the mandatory obligations of head anchors in areas such as intellectual property rights at the legislative level. The implementation of \"encouraging norms\" is not satisfying and cannot resolve the issue of head anchors increasing the risk of infringement. Local regulations and other normative documents have a lower level of authority and are applied in a limited geographical range， with insufficient legal force. A few local regulations have introduced special provisions for sales anchors， but these are specific to local affairs within their administrative region. Their hierarchy is lower than laws enacted by the National People's Congress or its Standing Committee， as well as administrative regulations formulated by the State Council. The geographical range is limited， and they only have certain legally binding powers within certain administrative regions， making it difficult for them to exert widespread regulatory effects in practice. Moreover， these local regulations often use terms like \"suggest\"， \"encourage\"， \"may\"， etc.， which often lack coercive legal force.

The formation mechanism of self-regulatory norms determines their ineffectiveness in constraining special online users like head anchors. Head anchors contribute enormous click rates to the entire Internet industry， attract numerous consumers， enhance the online activity of live-streaming platforms and live-streaming rooms， and drive the revenue of merchants， platforms， and MCN organizations. Their success in having earned positive market \"feedback\" seems to indicate that the commercial behavior of live-streaming aligns with the industry's self-regulatory norms， but the underlying reason is that these norms are shaped by the live-streaming activities themselves. Rational market entities will naturally consider their own market status in a serious manner and， by optimizing the use of disposable capital， ultimately aim to maximize group interests. If left unregulated， allowing head anchors to promote the formation of stable self-regulatory norms under the motivation of maximizing group interests will inevitably harm the interests of vulnerable market entities. The idea of applying self-regulatory norms to constrain head anchors is problematic. Instead， using legal means to optimize the distribution of obligations among entities is a more feasible solution.

3 Justification for Head Anchors to Bear a Reasonable Duty of Care： A Theoretical Perspective

As has been pointed out， head anchors are not purely advertising spokespersons， and current norms cannot effectively constrain this group. To merely punish them for prohibited conduct they engage in while \"knowing\" or \"should have known\" is clearly unable to deal with the fact that they expand the risk of infringement and yet reap huge benefits. Thus， it is necessary to further consider the reasonableness of imposing on them a duty of care.

The duty of care in tort law originates from the judgment of negligence， a theory and method that applies objective standards to evaluate negligence[11]. To date， this view has been integrated and absorbed by both civil law and common law traditions， becoming an important criterion for determining the subjective fault of an actor in modern tort law. The duty of care on head anchors implies that when they discover or should discover issues such as intellectual property infringements in the products sold in live-streaming rooms， they need to cease such actions promptly. Furthermore， they should proactively review the legality of products before facilitating transactions. Imposing this legal duty on head anchors under the existing legal framework requires an examination of its legitimacy， feasibility， and other aspects.

In the context of duty of care， if it is necessary to impose certain duties on one party for the benefit of another， the principles of fairness， justice， and reasonableness must always be upheld， taking into account benefits， value， and costs. These factors determine whether additional duties should be imposed on head anchors， and their further development should not be hampered due to the imposition of such a duty of care.

3.1 Risk Control Theory： Head Anchors Expanding the Risk of Infringement

The \"Risk Control Theory\" can be referred to to discuss the legitimacy of imposing a reasonable duty of care on head anchors. The theory suggests that to avoid damage or reduce its outcome as much as possible， duty should be borne by the party that causes the risk or that can control it， as such entities are closer to the source of damage and are better able to prevent its occurrence[12].

Head anchors， with Internet technology， have expanded the risk of infringement， including infringement on intellectual property rights. In the current online environment， although technology has a degree of neutrality， the operation of technology inevitably involves the will of its users. Under traditional sales models， the sales of infringing products are strictly limited by factors such as geography， time， and volume， which means that the interests of intellectual property right holders and consumers are unlikely to be widely violated， and meanwhile the damage is controllable. However， selling products by head anchors in live-streaming rooms is more akin to using technology to create a virtual space distinct from the real environment. As the administrator of this virtual space， head anchors organize product transactions， and the entire sales activity is not limited by time or space and involves huge volumes， posing a widespread risk of infringement to others. According to the Risk Control Theory， head anchors expand the risk of infringement and are closer to the source of damage. To better prevent the occurrence of damage， it is reasonable to require them to bear a duty of care.

3.2 Principle of Aligning Benefits with Risks： Head Anchors Gaining Significant Benefits from Sales

Law is also a means to balance social risks. Those who derive economic benefits from a source of danger are often viewed as having a duty to stop the danger[13]. This is also the jurisprudential basis for various countries to consider \"benefit\" as a criterion for determining whether a legal entity should bear related obligations. The principle also aligns with the Roman law maxim that \"Those who gain the benefit bear the risk.\" That is \"Let the benefit received be the damage sustained\". In live-streaming e-commerce， head anchors gain significant benefits and advantageous positions. Requiring them to bear a reasonable duty of care to control infringement risks is consistent with the principle of aligning benefits with risks.

Undoubtedly， head anchors， relying on their huge influence and strong fan base， gain substantial benefits from their sales. In recent years， cases of tax evasion by some head anchors have been exposed. For example， Viya was involved in a case of tax evasion amounting to as much as 1.341 billion yuan. The amount of tax evasion being so substantial indicates that the income from live-streaming sales must also be substantial. In practice， a very small proportion of head anchors take up the vast majority of traffic and resources in the entire market. According to reports， in 2018， Viya topped a wealth list with an annual income of 30 million yuan， 2.33 million total fans， and 700 million yuan in facititated transactions. In 2020， Douyin offered Li Jiaqi lucrative conditions with a \"guaranteed performance scale 150% of Taobao and twice the number of Douyin fans compared to the Alibaba platform，\" forcing Taobao to make a better offer to retain Li Jiaqi[14]. In view of the fact that head anchors can obtain considerable income from market transactions， it is justifiable to require them to share the potential infringement risks. At the same time， the strong market discourse power possessed by head anchors determines that they can negotiate on an equal footing with contracting companies and actively fight for rights through contracts to transfer or share risks.

In live-streaming e-commerce， head anchors garner numerous fans， enjoying a dominant market position. Fame is the most basic characteristic of head anchors and their defining feature. Head anchors might come from other fields where they have already achieved a certain degree of fame and fan base. For example， on May 9， 2020， Liu Tao officially joined Alibaba as a product promoter of Juhuasuan and entered the Juhuasuan billion-dollar subsidy live-streaming room. As a highly sought-after star in the entertainment industry， Liu Tao has already had numerous fans in the circle of performing arts. Her crossover into live-streaming sales industry was also to leverage her existing fame to attract consumer attention and thereby increase the sales in the live-streaming room. There are also head anchors who emerged from grassroots beginnings but gradually secured top spots in sales due to their good reputation. For instance， in 2017， Li Jiaqi， a makeup artist for L'Oreal， saw his live-streaming room audience grow from a few hundred people to over a hundred thousand， transforming from obscurity to the current \"Lipstick King\". The growth of head anchors similar to Li Jiaqi benefited from capital support， time accumulation， and outstanding personal capabilities. However， whether they are crossover celebrities or Internet personalities from grassroots backgrounds， they all have one thing in common： they already have a high market profile in live-streaming e-commerce. Attractive celebrities can influence consumer attitudes more than less attractive ones[15]. In practice， head anchors can easily influence consumer choices due to their advantageous market position， with their words and conduct.

3.3 Social Cost Control Theory： Low Cost of Head Anchors' Duty of Care But Optimal Benefit

Live-streaming e-commerce， which includes two major transaction stages， mainly involves five types of legal entities. Although head anchors are not the only ones responsible for preventing infringement risks， by applying \"the Hand Rule\"， it can be found that head anchors are the legal entities with the lowest prevention costs and yet optimal prevention benefits. Imposing the majority of the infringement prevention responsibility on them aligns with economic logic and meets the efficiency demands of the digital economy. The Hand Rule is an economic analysis rule established by American judge Learned Hand in the case of United States v. Carroll Towing Co[16]. Its implied economic analysis concept and social perspective have been widely applied in legal practice. According to the Hand Rule， the infringer only bears the responsibility for negligence if the burden of adequate precaution （B） is less than the product of the accident probability （P） and the loss （L） in case of an accident， i.e.， B＜PL[17]. The following analysis will be conducted from the perspective of intellectual property rights.

First， the burden of precautionary measures taken by head anchors is less than the social benefits increased.

If head anchors are required to invest a substantial amount of time and financial costs to conduct a prior legality review and monitoring of products sold through a live-streaming room， it means that head anchors need to bear additional costs for preventing infringement. If such costs exceed the benefits of strict intellectual property protection for society， or the potential losses that could be caused by the lack of strict review of intellectual property rights for products or services sold through live-streaming rooms， it means that it is unjust to require head anchors to actively review whether products or services pose an intellectual property infringement risk. In live-streaming e-commerce， if a lax intellectual property protection policy is adopted， a flood of infringing products will enter the market， driven by the benefits of live-streaming， leaving the interests of intellectual property rights holders unprotected. Considering this outcome， rational rights holders may realize that the benefits of creating intellectual works are far less than the benefits obtained by copying or imitating others' ideas， leading to a lack of an innovative atmosphere in society. Therefore， when applying a lax intellectual property policy to head anchors， the expected social loss （L） in case of an accident tends toward infinity， and the product of the accident probability （P） will far exceed the burden （B） of head anchors bearing the duty of care to prevent the accident of intellectual property rights infringement.

Second， the cost for head anchors to take preventive measures is less than the cost for right holders to take preventive measures.

Live-streaming is instantaneous and remains online for a very short time. Unless rights holders are notified in advance of the time when infringing products are sold in live-streaming rooms， it is difficult for them to detect infringement from the vast number of live-streaming rooms. Therefore， under normal circumstances， to find out about infringement in live-streaming rooms as much as possible， rights holders need to register on numerous live-streaming platforms and monitor live sales activities that may occur at any time and in real-time. Once infringing products are discovered， rights holders need to immediately fix the evidence and promptly inform the platform. Discovering infringement is already difficult， let alone simultaneously carrying out evidence fixation that complies with procedural and formal requirements of law. Complaint outcomes are also difficult to be processed in a timely manner， and consequently， hundreds or thousands of infringing products will flood the market， harming the interests of rights holders. Even if the products sold through live-streaming rooms can be recalled later， the enormous recall costs and the irreversibility of losses indicate that the losses of rights holders are difficult to effectively compensate for. Compared to head anchors， who only need to manage one live-streaming room， the number of live-streaming rooms faced by rights holders is undoubtedly huge， and their cost of preventing infringement is also greater than the cost paid by head anchors in taking preventive measures.

Third， the benefit of head anchors bearing duty of care is optimal.

The cost for head anchors to bear the duty of care is lower than other legal entities involved in live-streaming sales， but the benefit is optimal. In tort law， the Hand Rule conducts a holistic comparison based on the total cost and total benefit of accident prevention， which promotes the \"internalization\" of external costs but overlooks the marginal analysis of human behavior [16]. Therefore， Posner revises and expands the Hand Rule， believing that it should be understood from the perspective of marginal prevention costs3 and marginal benefits[18]. The marginal cost concept implied in the Hand Rule can be applied to determine the entities that should bear the duty of care in live-streaming e-commerce. In live-streaming e-commerce， in addition to head anchors， there are also two other important market transaction entities： MCN organizations and live-streaming platforms. In the entire commercial activity， each MCN organization and live-streaming platform has countless live-streaming rooms conducting market transactions， but the relatively small number of head anchors have extremely strong fan appeal and are responsible for a very large proportion of transaction volume. If MCN organizations and live-streaming platforms are required to conduct a prior review and real-time monitoring of all products sold in live-streaming rooms， according to the \"Marginal Hand Rule\"， to fully detect all infringing products， the marginal Burden （B'） for MCN organizations and platforms is very large， far exceeding the product of the marginal probability （the degree to which the probability of an accident decreases after a certain unit cost is invested）[16] and the losses brought by infringement accidents， i.e.， B'gt;P'L. A comprehensive and full review is not the optimal level of accident prevention because the time and financial costs paid are very high， and the monitoring effect may not be ideal， so the overall prevention benefit is not optimal. However， if head anchors are required to conduct a thorough review of the products they promote and sell online， ensuring the legality of product sources to a certain extent and reducing the risk of infringement， the legality of most live-streaming products circulating in the market can be ensured by expending limited prevention costs， achieving optimal benefit.

4 Justification for Head Anchors to Bear a Reasonable Duty of Care： A Practical Basis

4.1 Conforming to the Need to Protect Multiple Social Interests

When faced with emerging social issues， if a new legal system needs to be established， its feasibility must be carefully examined. A legal system can only be created if the benefits it aims to provide align with social interests[19]. For example， intellectual property law aims to strike an ideal balance between incentivizing intellectual property rights holders to create knowledge and the society's demand for knowledge products[6]. Any new system must maintain this balance.

If head anchors are only \"encouraged\" to review products without imposing on them mandatory obligations， it will harm various public interests. Firstly， the status quo in the industry of \"no pre-review， difficulty in mid-process detection， and challenging post-facto accountability\" may encourage head anchors to push their luck， inevitably leading to infringing products under the stimulus of high profits. While intellectual property rights holders' interests are ostensibly harmed， the deeper issue is that the intellectual property legal system may fail to provide effective incentives， potentially reducing societal innovation. Secondly， the influx of infringing products into the market makes it difficult to protect the collective interests of consumers， hindering the improvement of people's quality of life. Thirdly， the frequent occurrence of incidents of counterfeit goods undermines transaction security， reduces consumer trust in the live-streaming e-commerce business model， and ultimately damages the interests of the entire industry. By establishing a reasonable duty of care for head anchors， it is possible to effectively prevent harm to the aforementioned public interests. Thus， requiring head anchors to bear a reasonable duty of care conforms to the need to protect multiple social interests， aligns with the theory of interest balancing， and meets the prerequisites for legislation.

4.2 Conformity with the Legislative Orientation of Aggravating Legal Obligations of Head Anchors

The acts of head anchors represented by Internet celebrities are subject to multiple restrictions， and these head anchors should bear more obligations， which is now a global legislative trend. On March 18， 2021， the China Advertising Association issued the Code of Conduct for Live-streaming Product Selection， which requires anchors and agencies to carefully verify any necessary documents such as trademarks， patents， and certifications， as well as endorsements to confirm the actual situation of the products being promoted. In October 2021， Zhejiang Provincial Market Supervision Administration issued the Compliance Guidelines for Celebrity Endorsements in Commercial Advertisements to better guide celebrities and groups with certain influence in a field （commonly referred to as \"stars\"） and regulate their commercial endorsement behavior. In June 2022， the National Radio and Television Administration and the Ministry of Culture and Tourism issued the Code for Online Live-streaming Behavior， requiring anchors to abide by laws and respect others' intellectual property rights. In July 2022， Shanghai issued the Compliance Guidelines for Online Live-streaming Marketing Activities to address legal issues in live-streaming activities， clarifying the responsibilities and obligations of market entities， including anchors. At the current stage of live-streaming e-commerce development， it is both legal and reasonable to impose certain duties of care on head anchors， and there is a legislative basis for it. Of course， if the economic strength of the entire group of anchors increases in the future， and their ability to control and choose products improves， it will not affect the regulation of mid- and tail-section anchors or the imposition of further obligations on them.

4.3 Head Anchors Having the Ability to Bear the Duty of Care

Generally， robust economic strength can withstand more risks. To effectively prevent infringement， head anchors need to conduct proactive reviews beforehand， prevent the expansion of infringement damages during the process， and inform consumers of the truth and recall products afterward. Carrying out such tasks requires significant financial cost. The substantial profits that head anchors obtain from live-streaming sales lay a solid economic foundation for them to bear a reasonable duty of care.

At the same time， head anchors tend to sign contracts with MCN organizations. Researchers have surveyed the top 100 Internet celebrity anchors on the Douyin rankings and find that 86 of them have signed or are associated with MCN organizations[20]. To meet the working needs of head anchors， almost all MCN organizations equip them with professional teams. Even if there are head anchors who have not signed with an MCN organization， it is difficult to maintain a top ranking on the list through the personal efforts of the anchor alone; there must be support from capital or related teams in the background. Head anchors with professional teams are fully capable of conducting pre-compliance reviews and avoiding infringement risks.

5 Pathway to Imposing a Reasonable Duty of Care on Head Anchors

To better protect the interests of rights holders and consumers and to effectively handle the infringement issues in the live-streaming e-commerce， it is both legally justifiable and practically well-grounded to impose a reasonable duty of care on head anchors. However， issues like the manner， content， and legal liabilities for breaching this duty deserve further discussion.

5.1 Perfecting the Liability Determination System for Head Anchors

Advertising spokespersons have the most similar legal status to anchors， but head anchors， due to their powerful brand effect stemming from their influence， differ from ordinary anchors and traditional advertising spokespersons. Advertising spokespersons only bear certain legal responsibilities after engaging themselves in prohibited acts when they \"know\" or \"should have known\". However， according to the principle of aligning rights with obligations， since head anchors differ from advertising spokespersons， they cannot be regulated solely by modeling the standards of advertising spokespersons， as this would imply that their legal obligations are too light. The result of existing norms failing to effectively constrain this group is an expansion of speculative infringement and difficulty in safeguarding social interests. Therefore， to effectively prevent infringement in live-streaming e-commerce， protect consumer rights， and maintain a healthy market competition environment， it is necessary to reconsider the legal obligations of head anchors as a special group in the market.

There are two ways to require head anchors to bear a reasonable duty of care： One is from a legislative perspective， to add provisions for head anchors' duty of care to the E-commerce Law; the other is from an interpretative perspective， to enter head anchors' duty of care into the system of safety guarantee obligations， applying the provisions of Article 1198 of China's Civil Code. The legislative perspective emphasizes reshaping existing rules and can directly grant head anchors a reasonable duty of care. It may institute significant changes but equally significant effects. Legislative interpretation， on the other hand， can adapt to complex changes in the social environment， and meanwhile can ensure the stability of law and maintain its authority.

When discussing how head anchors should bear the duty of care， the interpretative perspective tends to be considered first， considering its easy integration into the existing legal system. China's Civil Code clarifies that entities bearing safety guarantee obligations include operators， managers， and organizers of mass activities. The situation of head anchors in live-streaming e-commerce is somewhat similar to \"organizers of mass activities，\" but although head anchors can control and manage live-streaming events， it is difficult to regard their behavior of announcing live-streaming hours in advance as \"organizing\"， and their legal identity does not belong to the organizers of mass activities. Therefore， the legislative perspective should be adopted， and the E-commerce Law or other relevant laws and regulations should clearly define the reasonable duty of care for head anchors， providing guidance for their actual behavior and perfecting the responsibility determination system for head anchors in live-streaming e-commerce.

5.2 Defining the Content of Head Anchors' Reasonable Duty of Care

The duty of care is essentially a set of behavioral norms established by law for different types of individuals in social interactions. By dividing the live-streaming process into various stages， the reasonable duty of care for head anchors should include the proactive prevention duty before live-streaming， the duty to prevent damage escalation during live-streaming， and the notification and recall duties after live-streaming.

5.2.1 Proactive Prevention Duty Before Live-streaming

The proactive prevention duty of head anchors before live-streaming is primarily manifested as a duty of prior review. The rise of online copyright infringement issues has caused a rift between the review duty and the duty of care[21]. However， the two concepts have not been strictly distinguished in China， and their respective contents have not yet been clarified. With the ongoing development of academic research and judicial practice， the inevitable result of the distinction between these two and the substantive conflation of duty of care with review duty will only lead to an excessive expansion of the scope of duty of care， ultimately imposing an unreasonable burden on the obliged party. Incorporating the review duty into the duty of care helps solve the boundary issue between the review duty and the duty of care， enhancing the predictability and stability of legal rules[21].

The proactive prevention duty of head anchors before live-streaming is thus manifested as a duty of prior review.

First， head anchors should actively and carefully examine products during the selection phase， attaching importance to issues like whether the products are genuine （proof of legal source of products）， whether authorization of brand has been obtained （formally adequate authorization documents）， whether the collaborating party has relevant qualifications （officially certified documents of qualification）. Products that do not meet these requirements should not be included in the live-streaming sales plan.

Second， if the products provided by the MCN organization are obviously infringing， such as well-known brands being sold at unreasonably low prices， the head anchors should also， to prevent large-scale infringement， further verify first and then clearly refuse the MCN organization's request to introduce， promote， and sell products in the live-streaming room when infringement is established. At the same time， for branded products provided by merchants， head anchors should search the China Trademark Office website to inquire about trademark registration， eliminating trademark infringement as much as possible.

In addition， head anchors can minimize related risks by signing contracts with merchants that clearly define terms of intellectual property infringement or breach of contract.

However， the standard for head anchors to conduct intellectual property prior review should be of a \"professional standard\". Intellectual property， unlike traditional civil rights， has unique features. As a result of these unique features， the specific standard for the duty of care in relation to intellectual property cannot be too high. On the one hand， the temporal and territorial complexity of intellectual property rights makes it difficult for other users to determine whether certain content is under intellectual property protection， and there are also many challenges in rights protection， finding of infringement， and the scope of rights enforcement. On the other hand， intellectual property involves a large amount and wide range of specialized knowledge. For example， the finding of patent infringement requires comparing the technology described in the \"claims\" with the accused infringing technology. The said technologies may cover technical information from various fields and are difficult for those who are non-science or non-engineering professionals to understand. In live-streaming e-commerce， a large number of products flood the live-streaming rooms on a daily basis， and the complexity of intellectual property adds technical difficulties to the screening of infringement information， increasing costs. Therefore， it is not reasonable to require the obligated party to bear the same degree of duty of care in relation to intellectual property as in the traditional civil field. Instead， the level of duty of care should be lowered. Combining the specialization of intellectual property and the head anchors' ability to control risks， the standard of care for head anchors in relation to intellectual property should be the \"professional standard\"， which is higher than the \"ordinary person standard\" but lower than the standard for the law enforcement and judicial authorities. That is， head anchors should bear the duty of care to conduct prior reviews for those foreseeable intellectual property infringement risks. Foreseeability is an objective standard of negligence， requiring judgment based on the knowledge and abilities that the entire professional group should possess， avoiding excessive burdens of obligation due to overly high standards.

5.2.2 Duty to Prevent Damage Escalation During Live-streaming

In a society with limited resources， the design of law should focus on the costs and benefits of legal actions. The goal of constructing a legal system is not limited to judging \"right and wrong\" after infringement occurs and compensating for the damaged party's losses， but should also consider social costs and reduce resource wastage. Compared to high post-facto compensation， proactive containment legal actions during the process are wiser and more efficient.

During live-streaming， if head anchors discover infringement， they should actively fulfill the duty to prevent damage escalation to minimize infringement losses or slow the progress of infringement. For example， head anchors should take necessary measures within a reasonable time frame upon receiving preliminary evidence of infringement， such as notifying the removal of product information， blocking， and disconnecting product links， and promptly forwarding such notices to relevant merchants. In the online environment， a reasonable time frame generally refers to 48 hours after receiving valid notification or becoming explicitly aware， or 24 hours in cases involving national security or public interests[22]. The requirement for head anchors to assume the obligation to prevent damage escalation is not superfluous; it can urge head anchors to take timely and reasonable measures to prevent the expansion of infringement damage upon discovering any infringing activity， thus avoiding irreparable losses to the rights holder.

5.2.3 Duty of Notification and Recall After Live-streaming

A healthy and orderly market is essential for maintaining consumer loyalty. If head anchors， upon learning that the goods sold are infringing， fail to take any remedial action and deceive consumers， their interests may seem unaffected in the short term. However， the long-term sale of infringing goods will lead to a loss of trust from consumers and cast doubt on the entire industry.

Therefore， after the live-streaming， if head anchors discover that the goods are infringing， they should take active steps to fulfill the obligation to notify and recall the infringing goods， compensating the consumer for losses and salvaging the image of the anchors as product promoters. At the same time， proactive fulfillment of notification duty by head anchors can effectively protect consumer rights. Timely notification of consumers about the infringement issues of products by head anchors is beneficial for consumers to fully understand the product information， safeguarding their right to be informed. Promptly recalling infringing goods helps consumers to realize their right to compensation and prevents the large-scale circulation of infringing goods in the market， which can safeguard the interests of intellectual property rights holders. For example， if goods sold through live-streaming infringe on trademark rights and are not recalled， their wide circulation in the market may weaken the distinctiveness of the trademarks， leading to consumer confusion. If the infringing goods have quality issues， they can also affect the reputation of the original products and harm the interests of the trademark owners. In addition， requiring head anchors to undertake post-live-streaming notification and recall duties not only provides good protection for consumers but also helps to establish a good market order in the live-streaming e-commerce industry， rebuilding consumer trust in head anchors and supporting the healthy development of live-streaming e-commerce.

5.3 Liability for Head Anchors' Failure to Fulfill the Duty of Care

If head anchors fail to actively fulfill their proactive prevention duty before live-streaming， their duty to prevent damage escalation during live-streaming， and their notification and recall duties after live-streaming， causing harm to the interests of intellectual property rights holders， consumers， and others， they should bear certain infringement liabilities. The infringement by head anchors， due to the involvement of third parties， constitutes joint infringement， and most of the damage suffered is essentially based on the combination of active infringement by merchants and the inaction of head anchors. Considering the temporal and spatial uncertainty of such infringement actions， the concealment of technologies， and the fact that product or service providers do not sell directly to the public due to the involvement of head anchors， it is difficult for consumers and intellectual property rights holders to directly or quickly locate the direct infringers in practice. However， many products are sold with the \"guarantee\" of head anchors' influence， and head anchors should ensure the smooth progress of online live-streaming activities， so they are obliged to conduct certain safety reviews and take preventive measures. In the event that they fail to fulfill their duty of care and harm the interests of others， they should assume corresponding supplementary responsibility and seek compensation from third parties after assuming supplementary responsibility.

However， the duty of care does not require head anchors to provide an absolute guarantee of no damage but only requires them to take possible and reasonable preventive measures[23]. If they have fulfilled their reasonable duty of care， they do not need to bear liability even if damage still occurs. On the one hand， head anchors' fulfillment of the duty of care provides substantial legal protection for rights holders. On the other hand， infringement liability can also urge head anchors to be no longer passive in market transactions， using their powerful market influence and advantageous market position to play the important role of a \"safety valve\" throughout the transaction chain.

6 Conclusion

E-commerce， as an important part of the digital economy， has seen a proliferation of new forms and models in recent years. Among them， the live-streaming e-commerce business model has demonstrated major advantages during the COVID-19 pandemic， with a rapid development momentum， and it is bound to become a core component of the e-commerce field in the future. However， the low cost of infringement， concealed infringement actions， huge profits from infringement， and high costs of rights protection are all stimulating the proliferation of infringement. Actively discussing and implementing the reasonable duty of care for relevant entities is of great theoretical and practical significance for promoting the healthy development of live-streaming e-commerce. On the one hand， it helps improve China's digital economy governance system， and on the other hand， it aids the expansion of the international market for e-commerce， laying a solid foundation for international cooperation in the digital economy.

References：

[1] The State Council. \"14th Five-Year Plan\" for the Development of Digital Economy [EB/OL]. （2022-01-12） [2023-02-22]. http： //www. gov. cn/zhengce/content/2022?01/12/content_5667817. htm.

[2] XI J P. Hold High the Great Banner of Socialism with Chinese Characteristics and Strive in Unity to Build a Modern Socialist Country in All Respects： Report at the 20th National Congress of the Communist Party of China [EB/OL]. （2022-10-25） [2023-02-22]. https： //www. xuexi. cn/lgpage/detail/index. html？id=17478440677105407928amp;item_id=174784406771054 07928.

[3] State Council Information Office. White Paper on Building a Community with a Shared Future in Cyberspace [EB/OL]. （2022-11-07） [2023-02-22]. http： //www. scio. gov. cn/zfbps/32832/Document/1732898/1732898. htm.

[4] The State Council. Report on the Development of the Digital Economy [R/OL]. （2022-11-28） [2023-02-22]. http： //www. gov. cn/xinwen/2022?11/28/content_5729249. htm.

[5] YUAN W Q， MAO J. Institutional response to the legal status and rights protection of internet broadcasters under new business forms[J]. Wuhan University Journal （Philosophy amp; Social Science）， 2022， 75（6）： 146.

[6] ZENG Y X， QIU L S， LIU H， et al. Economic analysis of intellectual property protection system - essentials of intellectual property rights[M]. Beijing： China Social Sciences Press， 2008： 24?26.

[7] LI K L. The \"Head Effect\" in the Internet Age [EB/OL]. （2018-07-18） [2023-02-22]. http： //media. people. com. cn/n1/2018/0718/c40628?30155445. html.

[8] MEI A， HOU Z S. Normative governance of e-commerce live-streaming in the \"live+\" era[J]. E-Government， 2021（3）： 30.

[9] 2022 China Red Economy Industry [EB/OL]. （2022-07-25） [2023-02-22]. https： //report. iresearch. cn/report/202207/4034. shtml.

[10] MAO J. Study on tax governance challenges and countermeasures in the \"online live-streaming + sales\" model[J]. Fiscal Science， 2022（10）： 127.

[11] SONG Z. Study on the duty of care of network service providers[M]. Beijing： Peking University Press， 2014： 53?54.

[12] ZHU X F. The conceptual discussion on the subject of animal tort liability[J]. Law Review， 2018， 36（5）： 84?99.

[13] CHRISTIAN B. The common European law of torts： volume two[M]. Translated by Zhang Xinbao. Beijing： Law Press， 2001： 271.

[14] XIE R L. The Two Sides of Live-streaming e-commerce： Greedy Sales and Irresistible Dependence on Head Anchors ［EB/OL］．（2021-12-11）[2023-02-22]. http： //finance. ce. cn/stock/gsgdbd/202112/11/t20211211_37162959. shtml.

[15] WU Q Q， ZHOU T G， ZHANG L. Review of research on the influencing factors of celebrity endorsement effects[J]. Productivity Research， 2010（11）： 249.

[16] WANG B. Consideration of consequences in the presumption of facts[J]. Legal Science （Journal of Northwest University of Political Science and Law）， 2021， 39（6）： 88?93.

[17] SI X. Setting the duty of care for intellectual property rights on network service providers[J]. Legal Science （Journal of Northwest University of Political Science and Law）， 2018， 36（1）： 79.

[18] POSNER R A. Economic analysis of law （Volumes I and II）[M]. Translated by Jiang Zhaokang. Beijing： Encyclopedia of China Publishing House， 1997： 105?106.

[19] LIANG S S. Theory of interest balancing[M]. Beijing： Peking University Press， 2021： 191.

[20] YU B. Research on the criminal risks of MCN organizations in network live stream marketing activities[J]. Shandong Social Sciences， 2021（10）： 187.

[21] WANG J. A New Interpretation of the duty of care of network storage space service providers[J]. Science of Law （Journal of Northwest University of Political Science and Law）， 2020， 38（3）： 101?104.

[22] YANG L X. Conditional joint and several liability and partial joint and several liability of network platform providers[J]. Science of Law （Journal of Northwest University of Political Science and Law）， 2015， 33（1）： 176.

[23] LIU Z C. Expansion of safety guarantee obligations and development of the judgment standard for illegality[J]. Law Science， 2014（5）： 78.

注意義務(wù)視角下直播電商中頭部主播的法律規(guī)制

馬治國1，賈金潤1，張小號2

（1. 西安交通大學(xué) 法學(xué)院，西安710049；2.西安外國語大學(xué) 高級翻譯學(xué)院，西安710128）

摘 " "要：數(shù)字經(jīng)濟(jì)與傳統(tǒng)銷售行業(yè)的結(jié)合推動了電子商務(wù)的蓬勃發(fā)展，直播電商作為電子商務(wù)的新型商業(yè)模式日趨流行，但監(jiān)管漏洞和失效問題不斷出現(xiàn)。頭部主播作為直播間的管理者，可以決定何種商品通過直播間流向市場，其在行業(yè)內(nèi)具有的強(qiáng)大影響力，擴(kuò)大了知識產(chǎn)權(quán)等侵權(quán)風(fēng)險，但法律身份的不確定導(dǎo)致責(zé)任缺位，現(xiàn)有規(guī)范又無法有效約束這一群體。根據(jù)危險控制理論、收益與風(fēng)險相一致原則和社會成本控制理論，要求其承擔(dān)合理注意義務(wù)具有法理上的正當(dāng)性和實(shí)踐中的可行性。因此，為進(jìn)一步將該義務(wù)在法律上予以落實(shí)，應(yīng)完善直播電商中頭部主播的責(zé)任認(rèn)定體系，明確頭部主播承擔(dān)合理注意義務(wù)的內(nèi)容和違反后的法律責(zé)任。

關(guān)鍵詞：頭部主播；直播營銷；數(shù)字經(jīng)濟(jì)；注意義務(wù)