China: Jiangsu: Whether there is an employment relationship between a streamer and a media company shall be considered from three aspects: personal appendant relations, income distribution and nature of the agreement
On 7 October 2021, Ms. Ma signed a “Streamer Cooperation Agreement” with a media company, which stipulated that the company is Ms. Ma’s exclusive and sole live activity cooperation company, and Ms. Ma entrusted the company to act as an exclusive agent to operate and manage her online live activities. Ms. Ma should live stream no less than five (5) hours per time per day and no less than twenty-five (25) days per month during the cooperation period. Ms. Ma should comply with the code of conduct of live stream, the appraisal and cash reward regulation of the company. During the performance of the agreement, there was a dispute between the two parties as to whether their legal relationship was a cooperative relationship or an employment relationship. The Court held that there was an employment relationship between Ms. Ma and the company.
The Court held that the content of rights and obligations established by the agreement between both parties and the actual performance shall be examined, personal appendant relations, income distribution and nature of the agreement shall also be considered. As a new type of employment form that relies on the Internet platform, streamers have flexible and diverse ways of cooperation with media companies, and each case shall be analysed on a case-by-case basis.
In this case, firstly, as to the nature of the personal appendant relation, Ms. Ma was subject to the company’s management and lacked her autonomy in decision-making when conducting the live stream activities, such as complying with the attendance regulations and relying on the live stream equipment provided by the company, rather than cooperation between equal subjects. Secondly, in terms of income distribution, although Ms. Ma received rewards from the audience during the live stream, she had to follow the rules formulated by the company when distributing the rewards, her income is arranged or distributed by the company, rather than a cooperative distribution model of sharing risks and benefits. Finally, regarding the nature of the agreement, Ms. Ma’s live stream is a part of the production and organization system of the company, not independently engaged in business activities under a cooperative relationship, and the rights related to the audio and video content and related content copyrights of the live stream are exclusively owned by the company.
Based on the above, the Court held that the legal relationship between Ms. Ma and the company conforms to the basic characteristics of the relationship between an employer and an employee which is organizational subordination, and there is an employment relationship between the two parties.
Key Action Points
The legal relationship between streamers and media companies shall be analysed on a case-by-case basis. When signing contracts with streamers, media companies shall carefully consider the personal appendant relations, ways of income distribution, and nature of the agreement. If media companies do not intend to establish employment relationships with streamers, it is advisable to clearly specify income distribution methods, work modes and nature of the agreement which are distinguished from employment relationship in the agreement and perform according to the agreement.
