Study On Civil Liability Of Celebrity Endorsement In False Advertising

The melamine milk scandal of 2008 startled all over the world. While blaming those businessmen for their illegal activities, people are wondering whether the celebrities, who were the spokesmen for Sanlu Milk, should take the legal responsibilities for the deceptive advertising, especially civil liabilities to customers. In fact, there has been a hot debate both in theoretical and practical fields regarding celebrity endorsement since a customer sued a star, the spokesman for a famous cosmetics brand in Nanchang. Food Safety Law was enacted soon after the Sanlu Milk Scandal and is of great significance to establish such a system for celebrity endorsement. Professors all hold positive attitudes towards celebrities bearing civil liabilities for false advertising. In contrast, owing to the vagueness of Food Safety Law, the silence of Advertising Law and the ambiguity of other laws, it is still not clear for well-known spokesmen to assume civil liabilities. Hence, the author tries to make a study on the system and the analysis is divided into the following four parts.The first part pinpoints the theories relating to celebrities'civil liabilities. While introducing the relevant laws and regulations in developed countries and Chinese Taiwan, the essay identifies the components of false advertising. First, the advertisement needs to be false or open to misunderstanding. Second, a certain number of ordinary customers are involved. Third, celebrities are defined since current Chinese laws do not provide clear regulations regarding spokesmen. After analyzing various theories, the article agrees that such act is an infringement and disagrees with the no-fault principle, which will be discussed in Part III.Part II provides theoretical basis for civil liability of celebrity endorsement. From moral perspective, such malicious acts infringe customers'rights and therefore fall into the definition of'fraud'. It presents the absence of moral in some business areas and is inconsistent with the principle of good faith. From legal aspect, high risk-high reward is the basic doctrine of market economy. Notwithstanding, it is low risk with high profit for celebrity endorsement, which contradicts with right equaling to obligation. Moreover, as a member of the society, celebrity should bear social responsibility.The third part points out the defects of Advertising Law in dealing with civil liabilities of celebrities on a comparative basis. Some countries put the responsibility in advertising law while some others regulate it through special laws. For example, advertisement is under substantial examination in Korea and Canada in order to prevent false advertising. In the US and Canada, it is stipulated that those celebrities, who speak for, recommend or prove the products and service, should be actual users. Advertisement should be supported by enough facts. Fraud and misleading are forbidden, otherwise civil or criminal liabilities will be imposed on them. French and Japanese advertising laws provide strict liability system. Once false advertising causes damages to customers, customers can ask procuratorial organs to bring an action or participate in criminal litigations. In the US and Sweden, advertisements are marked according to different products. The advertising relating to cigarettes, alcohols, food and diet drugs is specifically regulated.After introducing foreign legislations, the article identifies the following defects in Chinese law.1. Subjects of obligation are narrowly defined. Advertising Law, which is applied generally, fails to specify and no regulations involve celebrities.2. The provision regarding principle of liability is ambiguous. Article 55 of Food Safety Law does not provide what principle of liability would apply to individuals who shoulder such infringement liability.3. Civil liability is compensatory, which cannot effectively balance the interests between spokesmen and customers.In the last part, it is argued that civil liability for celebrity endorsement should be reconstructed from aspects of value of law and system construction. Order is the key value and efficiency is the objective, which should be pursued in establishing such liability. In relation to the system, individual spokesmen should be included by, way of enacting specific law or revising Advertising Law. Presumptive fault principle should be applied in order to protect customers who are difficult to prove while celebrities can safeguard their fame. What's more, besides compensatory damages, punitive damages under Common Law system should be introduced.