As of June 30^th 2022, the monthly active users of WeChat in China and WeChat abroad has reached 1.299 billion, most of whom belong to multiple group chats with different identities. The vigorous development of social media and online communities, such as WeChat and QQ has greatly expanded the field of public consultation and dialogue, which is far beyond the reach of traditional one-way mass media. They facilitate the freedom of speech, participation in politics, maintenance and expansion of social relationships, interest development and improve efficiency of life. However, as communication technology and Internet reduce the cost of information dissemination and illegal costs, online gambling, dissemination of obscene materials, and online infringement occur frequently. In terms of supervision, government is not only facing the reality that the decentralized structure has led to the erosion of state power and governance fragmentation, it also confronts with the value problem of protecting the freedom and privacy of communication (according to Article 40 of the Constitution) and the difficult in directly intervening in WeChat group chat information.

In 2017, the Cyberspace Administration of China promulgated the “Regulations on the Management of Internet Group Information Services”, in which Article 9 stipulates: “Internet group founders and managers shall perform group management responsibilities, regulate group behavior online and published information in accordance with laws and regulations, user agreements and platform conventions, and build a civilized and orderly network group space. Internet group members should abide by laws and regulations when participating in group information exchange, interact with each other in a civilized manner, and express rationally.” For the first time, the solution “whoever builds a group should be responsible” and “Whoever manages the group should be responsible” was proposed. Social WeChat groups have thus become a typical epitome of the coordination of “law, architecture, community norms and market” in virtual social governance, the role of private rights allocation in social governance system, and the standard of security obligations under the risky society.

1. Overview of social WeChat groups and group owners

1.1 The scope of social WeChat groups

There are various WeChat groups in daily life, including but not limited to family groups, friends groups, work groups, interest groups, purchasing groups, etc. The WeChat groups discussed in this article are mainly social WeChat groups, which are voluntarily assembled by social members, independent from the government and other subjects, with autonomous mode of operation, open group boundaries, consistent group behaviors, and non-profit group building purposes.[1] The obligation standards that apply to social WeChat group owners are applicable to other types of WeChat group owners, who also follow their own unique rules.

So, what is a social WeChat group? Equal subjects in life are listed in this category, such as interest groups, relatives and friends groups, and alumni groups established for the purpose of connecting with each other based on common interests and hobbies. The members of a group form a friendly relationship that does not need to be adjusted by law in the behavior of building a group. The group owner has certain autonomy in matters, such as the management of group members, organization of group activities, and dissolution of the group. In this way, two types of situations are excluded: (1) WeChat groups are established for the accomplishment of certain legal interests, including those used for the fulfillment of contracts, such as online instant order grabbing or real-time interactive lectures; Owners' meeting groups and villagers' collective members groups, which are the necessary channels of participation for grassroots autonomy. These WeChat groups are subject to the adjustment of provisions of law, such as rules in the contract and property rights part of the Civil Code. (2) WeChat groups are established to track and assign tasks to members of the organization and improve the efficiency of internal communication, such as the typical work groups of enterprises, administrative organs and other units or departments. This kind of WeChat group is subject to the adjustment of labor law or other social norms.

1.2 Definition of social WeChat group owners or managers

WeChat group owner or manager is an organization or natural person who actually enjoys and exercises the technical management rights of modifying group names, sending group announcements, managing groups (only the group owner or group administrator can manage, enabling or prohibiting modifying group names, enabling the confirmation of group chat invitations and specifying group administrators), transferring group owners, disbanding group, etc. They are usually the initiator of the WeChat group or the person added by the initiator to co-manage the group's affairs. The WeChat group owner or administrator may be the main body in a WeChat group that holds the most social capital and has the strongest mobilization ability, such as the biggest fan in the fan group and the elderly in the alumni association. However, these situations above may not usually be the case, especially when the group is built face-to-face or when the central node of the network is transferred after the group is built by the group owner. Actually, whether the technical and social status of the WeChat group owner or manager are the same does not affect the identification of the WeChat group owner or manager, but it does differentiate the legal liability under different infringement scenarios.

2. Duty of care of social WeChat group owners

2.1 Obligations of social WeChat group owners in public law

Article 9 of the Regulations on the Management of Internet Group Information Services requires founders and managers to assume management responsibilities in the sense of public law. The main reasons are as follows: first, the speech and behavior inside WeChat groups are highly concealed. Thus, on the one hand, substantive examination cannot be conducted on all chats objectively and legally through the network platform, and only the overall restriction on those chats can be implemented, in order to prevent the mass gathering of people from endangering public interests and national security, which will ultimately reduce the effectiveness of the state in cracking down on network infringement and criminal activities with the help of platforms. On the other hand, with the increased cost of individual discovery of infringement, the incentive of private litigation becomes insufficient. Second, being at the tail end of the social governance system, WeChat groups have formed a stable structural social network, creating conditions for state intervention. Particularly when the national law enforcement force is insufficient,[2] better governance effects can be achieved by using the existing social network to guide and supervise the core members of the group.

However, the duty in public law is different from the duty of care in civil law, which is not the focus of this article. The Regulation on the Management of Internet Group Information Service belongs to the administrative regulations issued by the Cyberspace Administration Office in terms of rank, and cannot be excluded from the appropriate regulatory norms that define the objects protected by the tort law. Moreover, Article 9 has met the requirements of the purpose of protective norms, as it not only protects the public interest (gambling and dissemination of obscene materials are prohibited), but also provides protection for specific victims (right of reputation, infringement of intellectual property, etc.). However, this regulation is too principled and does not specifically describe the behavioral obligations of WeChat group owners, so it cannot play a role as a protective norm.

2.2 The civil law status of social WeChat group owners

2.2.1 Managers of specific cyberspace

The social relationship between people can be divided into chain communication and circle communication, while WeChat group belongs to the latter one. In circle communication, interpersonal activities have clear "boundaries", and people are concentrated in this virtual space. Hence, it can be concluded that the WeChat group owner or manager is the de facto manager of the region, and the social WeChat group owners can be imposed the security obligations of site managers:

First, the group owner opens the risk source and has the ability to control the risk. WeChat groups increase the frequency of social interaction, which inevitably leads to friction between people. Also, coupled with the “disinhibition” function of the network, people often release more intense emotions in pure virtual space compared with real space. The owner of a WeChat group has a duty of protection to the subjects participating in the group chat. It can also be compared to the land interest possessor's responsibility under the American Tort Law. The land interest possessor has different degrees of duty of care to the infringer, licensee and invitee. WeChat group owners have weak legislative and executive control over the behaviors infringing on the rights and interests of group members, which are specifically reflected in releasing group announcements, removing group members from the group chat and dissolving the WeChat group, so as to prevent the damage from occurring or further expanding. Second, the proximity of management. For the consideration of convenience in space and technology, Chinese administrative legislation gradually introduces the concept of third-party obligations, in order to achieve the purpose of risk control with the help of social forces, this governance model is in line with the economic principle of cost effectiveness. The same is true in civil legislation, but the burden placed on WeChat group managers should not be too heavy, and should be matched with many factors such as their ability, the expectation of group members and whether they are profit-making.

2.2.2 Group chat organizers

WeChat group owners or administrators also assume the role of activity organizers, but two kinds of organizers should be differentiated from each other: the first one is who instigate and guide the occurrence of infringement; the second one is who creates conditions for the infringement, and the infringement occurs through self-organization.

As an organizer, the owner of a social WeChat group should have the obligation to protect an unspecified third party. The reason is that a social WeChat group usually connects people together and become a community through a specific topic, a specific region, a specific relationship, a specific interest, etc., so as to achieve the effect of integrating fragmented information and taking collective actions. On the one hand, large-scale collaboration and distributed nodes make the collection, processing and aggregation of information more efficient; however, such group activities may infringe on human rights (such as human flesh search), intellectual property rights (such as pirated e-book sharing), or violate the public interest (such as drivers reporting the vehicle whereabouts and duty status of traffic law enforcement police in real time to make other drivers evade law enforcement). On the other hand, the emotions of group members are easy to be incited to take actions. For example, fans of different "fan circles" hurl insults at each other online, and people assemble illegally offline.

2.3 The application social WeChat groups owners’ main security obligation

2.3.1 Contents of social WeChat groups owners’ duty of safety care

The Civil Code has made general provisions on tort liability on the Internet, standardizing the tort liability of network users and Internet service providers, but has not made special provisions on the duty of care and tort liability of network activity organizers such as group owners. We believe that the group owners’ duty of care and related tort liability can be discussed from the dimensions of the security obligation and the violation of the security obligation. After all, the group owner is the organizer of the group chat activity, and also the manager of the specific online space.

According to Article 1198 of the Civil Code:

“Operators or managers of business or public places such as hotels, shopping malls, banks, stations, airports, stadiums, entertainment venues, or organizers of mass activities who fail to fulfill their security obligations and cause damage to others shall be liable for tort.

Where an act of a third-party causes damage to another person, the third party shall be liable for tort. If the operator, manager or organizer fails to fulfill the duty of safety guarantee, he shall bear the corresponding supplementary liability. After assuming the supplementary liability, a business operator, manager or organizer may seek compensation from a third party.”

WeChat group owners' duty of safety care includes three levels: before the event, during and after the event. Before the event, group rules should be set to express the purpose of the group, rights and obligations of the group owners and members, and ways to resolve conflicts and disputes, requiring group members to abide by laws and regulations, interact in a civilized way, and express themselves rationally. During the event, WeChat group owners should maintain necessary supervision on the content of group chat. If members of the group are found to be attacking other members continuously, corresponding measures should be taken. If members and chat contents of the group are numerous, corresponding measures should be taken after the infringed party has issued an application to the group owner. After the event, WeChat group owners should actively resolve the conflict, organize the two parties to negotiate. If the conflict still cannot be solved, owners should actively seek help from the network platform and national regulatory authorities.

It is worth noting that, first, in network group chats, people should have a certain tolerance and tolerance mentality due to frequent communication, and the determination of duty of care should be based on the principle of leniency in individual cases. Second, the above obligations of WeChat group owners are not absolute. In particular, the causal force of group announcement and organization and coordination on the occurrence and expansion of damage needs to be further considered.

2.3.2 Social WeChat group owners' security obligations and their fault responsibilities

As a special subject, social WeChat group owners have the security obligation. According to Article 1198 of the Civil Code, the liability for violating this obligation applies to the principle of fault liability rather than the principle of no-fault liability, and the presumption of fault is not applicable.

First, the tort liability caused by the violation of the security obligation belongs to the scope of the fault liability principle in nature. Some scholars believe that the violation of security obligation and the existence of fault are two different concepts, and they cannot be replaced. However, tort liability law takes fault liability as the principle and no-fault liability as an exception. The assumption of no-fault liability needs to be clearly stipulated by law, while the expression of “fail to fulfill their security obligations” in the law indicates that the principle of fault liability is still applied.

Second, the identification of tort liability of network platform organizers does not apply to the presumption of fault. Article 1165 (2) of the Civil Code clearly stipulates that the application of the presumption of fault needs to be clearly regulated by law. Therefore, in the absence of such provisions in the current law, the identification of the main liability of WeChat groups owners shall not apply the rule of presumption of fault.

3. The infringement liability type of social WeChat group owners

The tort liability of social WeChat group owners includes their own liability, joint liability and supplementary liability. Initially, if the WeChat group owner does not handle the infringement of others' rights properly, such as warning the infringed or distorting the infringement facts in the form of announcement, which affects the reputation of the infringed, he or she may be required to bear independent tort liability in accordance with Article 1165 of the Civil Code.

Secondly, when the WeChat group owner sets an overall goal, such as sharing pirated e-books, or guiding the members of the group to synthesize other personal information of an individual through fragmented information in a specific activity organization for human flesh search, the group owner shall bear joint liability for inciting infringement according to Article 1169 of the Civil Code.

Finally, when the WeChat group owner, as the manager and organizer, fails to fulfill the obligation to stop the person under his control from harming others, he should take supplementary responsibility as appropriate. The reason lies in that, on the one hand, letting the owner undertake joint and several liability lacks legitimacy. Group members do not need to obtain the consent of the group owner to publish information, and both parties do not have intentional contact and joint infringement in advance. In addition, the status of WeChat group owner is different from that of the network service provider. When the network service provider does not act after receiving the notice, the subjective “knowing” state makes it transform from technical service provider to content service provider, from “channel” to “information source”, and from indirect responsibility to direct responsibility. However, there is no similar change in the status of WeChat group owners. On the other hand, liability by share is not conducive to achieving the balance of interests between the infringer, and will fall into the dilemma of liability distribution where the direct infringer does not need to bear the full amount of the final damage liability. Taking the supplementary liability corresponding to the fault and cause force can better balance the freedom of behavior of the WeChat group owners and the value of protecting the rights and interests of the right holders. At this point, the tort-feasor should have four requirements to bear tort liability: act, fault, damage and causality. It is worth noting that, first, the judgment of act and fault is consistent, because the duty of care is the behavioral obligation in a specific scene, deviation from this standard indicates that the person has fault; Second, the obligation of the WeChat group owner is to stop the people under his control from harming others, and the intervention of the direct infringer does not block the causal relationship.

Translated by: Liu Yuwei