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is the relationship between streamersthe platform company a labor relationship?
[2019-04-18]

As a person who likes to watch people live streaming their video game play, have you ever thought about what kind of legal relationship it is between the streamer and the platform? Is it a labor contract or a cooperation agreement? Let¡¯s take a look at the case tried by Shanghai Baoshan District People¡¯s Court (hereinafter referred to as ¡°Shanghai Baoshan Court¡±) and find the answer.

[Case Review]

Plaintiff: Mr. He

Defendant: A culture company

Mr. He was ¡°scouted¡± by a culture company because of his excellence as a streamer.

On December 7, 2015, the two parties signed the Exclusive Cooperation Agreement for Streamers, which stipulates that the company shall provide resources and platform, and Mr. He shall comment on the games in the game room provided by the company. Mr. He must meet the working hours per month required by the company, and the company shall pay him a salary of RMB 7,000 yuan per month.

Mr. He claims that he is using his skills to comment on the game on the platform, and the game is a product co-developed by the company and a third party. The company tries to earn money by making the game more popular and attracting players to buy equipment to upgrade through live streaming. However, to escape the obligation of paying social insurance premiums, the company unilaterally provides the Exclusive Cooperation Agreement for Streamers and refuses to sign a labor contract with Mr. He. In February 2016, Mr. He left the company.

Dissatisfied with the labor arbitration decision of dismissal, Mr. He files a lawsuit and requests the court to:

1. Confirm that the plaintiff and defendant had a labor relationship between December 7, 2015 and January 31, 2016;

2. Order that the defendant pay him twice his monthly salary (RMB 14,000 yuan) from December 7, 2015 to January 31, 2016, a period when the labor contract was not signed.

The culture company claims that Mr. He is good at live streaming game play and he needs to use the company¡¯s platform for live streaming, so they signed a cooperation agreement. The company offers him the broadband, the technical, software and hardware support, Mr. He can choose whatever he likes for the live streaming, the company does not develop game software nor does it restrict the content of Mr. He¡¯s live streaming, but it does require Mr. He to stream within his expertise. Mr. He was not employed by the company, and he did not comply with the company¡¯s rules and regulations. His working hours and space are not fixed. He can decide by himself when and where to do the live streaming. Accordingly, there is no labor relationship between them. The company requests that Mr. He¡¯s requests should be rejected.

 

[Case Study]

After hearing the case, Shanghai Baoshan Court held that the Exclusive Cooperation Agreement for Streamers represents the true intention of both parties. As a streamer with full civil capacity, Mr. He should have a good understanding of this industry. This Cooperation Agreement is binding on both parties.

Mr. He thinks the Agreement is the formatted terms and conditions that the culture company provides to avoid its obligation to sign a labor contract and pay social insurance premiums, but considering the particularity of competition among the streamers, it is in line with the industry practice that platform, for the sake of its management, imposes restrictions on streamer¡¯s rights and obligations. The court cannot decide that the company has managed Mr. He in the sense provided under the Labor Law.

Although Mr. He is bound by the length of live streaming, he can decide by himself when and where to do live streaming. His labor force is not controlled by the culture company. Therefore, the two parties do not meet the essential requirements for the establishment of a labor relationship. It is instead a contractual relationship between equal civil subjects. In conclusion, Shanghai Baoshan Court does not support Mr. He¡¯s requests to 1) confirm the labor relationship between him and the culture company and 2) order the culture company to pay him twice his monthly salary during the period when a labor contract is not signed.

After the first-instance judgment, Mr. He refused to accept it and appealed. The Shanghai No.2 Intermediate People¡¯s Court, after trial, decided to reject the appeal and maintain the original judgment.

The Court reminds you: with the integration of the Internet and the real economy, there comes the employment model of ¡°platform + practitioners¡± on the Internet platform. There is some kind of a conflict between the traditional judicial ideas and the judicial ideas in the context of the Internet. A ¡°gray area¡± of the labor relationship appears in the new model, which conforms to some characteristics yet not to others. We call it the ¡°weak labor relationship¡±.

The core standard for identifying a labor relationship is ¡°labor management¡±. Labor management not only refers to the management under the working state, but also to the employer¡¯s management of workers in the non-working state. In the context of sharing economy, the rights and obligations of workers during their ¡°non-working time¡± are an important indicator to identify whether there is a labor relationship. In this case, Mr. He and the culture company have no intention to develop a labor relationship and their relationship is loose. Mr. He can completely decide by himself when, how and what to live stream. He is under no restrictions of the platform. The platform does not check his attendance, nor interfere with his life after live streaming. Therefore, the court decides that there is no labor relationship between the two sides.

 

[Relevant Laws]

Labor Law of the People¡¯s Republic of China

Article 78 Labor disputes shall be settled according to the principle of justice, fairness, and promptness so as to safeguard the legitimate rights and interests of the parties involved in these disputes in accordance with law.

(Case written by: Zheng Xiaohan, Chen Ruogu, Hu Mingdong, Shanghai Baoshan Court)  

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