Defense strategies for suspected fraud in online live-streaming for inducing rewards

Abstract

For online live-streaming operators who use false personas, fixed language, create ambiguous relationships, false romantic relationships, or use marriage as a cover to fabricate false reasons to induce irrational rewards, they may be suspected of fraud. In this regard, the defense strategy for innocence can take the victim's lack of misunderstanding as the starting point of defense, and use the absence of a causal relationship between fan rewards and fraud as an auxiliary defense point. The key points of a lenient defense mainly include accurately determining the amount of fraud, reducing the responsibility for refunds, and the "victim" having illegal purposes and faults, etc.

Key words

Defense of innocence and leniency for online live-streaming reward fraud

With the rise of online live-streamers and live-streaming platforms, the chaos of online live-streaming rewards once became the focus of social attention. In recent years, many online live-streaming activities that induce people to buy rewards have also been convicted of fraud. There are many controversial issues regarding whether all constitute fraud and whether it is necessary to further distinguish the types of behavior, which are worth discussing.

I. Behavioral Characteristics of Online Live-streaming in inducing Rewards

The full name of online live streaming is online live marketing activities, which means registering accounts on online live streaming platforms, setting up live streaming rooms, and conducting various themed live marketing activities for the online public, such as "food live streaming", "product promotion live streaming", "entertainment live streaming", etc. Among them, the several parties involved in online live-streaming activities mainly include live-streaming marketing platforms, live-streaming room operators, live-streaming marketing personnel, and live-streaming marketing personnel service institutions. From the perspective of case law, the participants in live-streaming marketing activities that have been convicted of fraud mainly include the operators of live-streaming rooms and live-streaming marketing personnel. However, live-streaming marketing platforms and live-streaming marketing personnel service institutions have not been involved in fraud due to their different behavioral divisions.

In order to gain more rewards or other economic benefits, live-streaming room operators and live-streaming marketers often use various marketing methods to attract the attention of fans and audiences, and then obtain rewards and other economic benefits through various tricks. Among them, common illegal and non-compliant marketing methods mainly include vulgar group broadcasts to entice users to give rewards, false personas to deceive users into giving rewards, inducing minors to give rewards, and stimulating users to give rewards irrationally, etc. In judicial practice, the main cases involving fraud are mainly reflected in the false personas luring users to give rewards and stimulating them to give rewards irrationally. Its behavioral pattern is mainly manifested in several characteristics:

The first is the fictional character design. That is, they conceal their marital status and falsely claim to be single, creating false personas such as "poor household", "princess", "elite overseas returnee", etc., impersonating special identities like flight attendants, teachers, and medical staff, or using AI technology to generate false portraits to deceive the audience into giving rewards.

The second is the fixed script. The live-streaming operator or streamer designs a complete set of marketing chat scripts in advance to serve as a template for communicating with different fan audiences, such as "alias scripts" and "female myth scripts", etc.

The third is that non-host personnel chat on behalf of others. Since live-streamers cannot interact one-on-one with multiple fans simultaneously, live-streaming operators conveniently set up dedicated chat agents to impersonate the live-streamers and interact with fans one-on-one through chat tools based on fixed scripts. Fans thought they were chatting with the streamer, but in fact, it was other people chatting on their behalf.

The fourth is to create ambiguous relationships, false romantic relationships, and use marriage as a cover. Live-streaming hosts pretend to be in a relationship with their fans, make friends, or hint at sexual behavior, which leads fans into a wrong perception and makes them imagine that they might have the desired relationship with the hosts, thereby causing fans to give irrational rewards.

The fifth is to induce irrational rewards by fabricating various false reasons and other means. Live-streaming marketers and streamers often use various excuses, such as meeting in person, travel expenses, fabricating that "losing a popularity PK match will result in punishment", ranking fans who reward, designing a "reward investment" gameplay, and using "dog touts" to falsely send gifts to create an atmosphere, etc., to stimulate fans and users to engage in irrational rewards.

It can be seen that through the above deconstruction of the behavior of luring and giving rewards through online live streaming, it is entirely possible that the operators of online live streaming and the hosts are suspected of fraud, and there are indeed a large number of judicial precedents. However, nothing is absolute. We cannot generalize the behavior of online live-streaming fraud and reward promotion without considering the details of individual cases. Regarding the criminal issues involved in online live-streaming rewards, specific circumstances should be analyzed on a case-by-case basis to avoid presuming guilt based on evidence and facts.

Ii. Defense Strategies for the Crime of Fraud involving Online Live-streaming inducement to Reward

For such cases, attempting to defend from the objective elements of fraud is not a very appropriate strategy. Generally speaking, due to the extreme promotional nature of live streaming on the Internet, there are often elements of exaggeration, and even objective situations such as fabricating facts or concealing the truth. Even if there is some exaggerated publicity, it cannot be completely determined that it constitutes the fabrication of facts or the concealment of the truth. However, due to the unclear boundaries, it is prone to being criminalized. Therefore, attempting to deny the existence of fabricated facts or the concealment of the truth generally cannot serve as an effective defense point. It is worth noting that during the process of live streaming on the Internet, the language used does not obviously fabricate facts or conceal the truth. Instead, it employs some ambiguous expressions that are prone to evoke associations. Theoretically speaking, this cannot be directly equated with objective fraud. This kind of determination is prone to controversy and it is difficult to rely solely on this point to achieve the defense effect. It is necessary to combine other defense points to work together.

An effective defense is recommended to be approached and developed from the following perspectives.

1. The victim's correct understanding is the starting point for defense

As a medium connecting the online society and the real society, live streaming on the Internet cannot be fully understood and recognized in accordance with the logic of the real society. Fans' love for streamers is sometimes irrational and fanatical. This kind of irrational fondness does not arise from a wrong understanding, but sometimes it is based on the special charm, special appearance or other rare features of the live-streamer. At this point, fans did not fall into a wrong understanding. Even when they knew that the streamer had fabricated a character or pretended to be in love, they still did not reduce their love for the streamer. In practice, there have also been cases where fans, when being surveyed, did not think they had been deceived. They also knew that the streamer was interacting with multiple opposite-sex fans at the same time and that the streamer was fabricating a persona and playing ambiguous games, yet they still liked the streamer. This kind of irrational emotion is partly due to the personal charm of the streamer, but it cannot completely deny the streamer's personal value contribution. It is entirely attributed to the irrational emotional expression caused by fans falling into a wrong understanding.

For fans who have been giving rewards for a long time, they are also very familiar with the operation patterns of online live streaming and are not completely ignorant. Some experienced long-time fans who have been active in the online live streaming circle also pay attention to and praise multiple streamers at the same time. In this case, it is difficult to determine that such fans have a wrong understanding.

2. The fact that there is no causal relationship between fan rewards and fraud can be used as an auxiliary point of defense

In specific cases, there are often situations where fans voluntarily give rewards, meaning that there is no causal relationship between fan rewards and fraud under criminal law. There could be many reasons why fans voluntarily give rewards. There are both situations where fans fall into a wrong understanding and give rewards due to the fraud committed by the streamers, and there are also cases where fans think it is worth giving rewards because the streamers provide emotional value to the fans. It can be seen that the reason why fans give rewards is not entirely because they have been defrauded by the streamers or the online live-streaming providers. It is also entirely based on normal rewards for emotional returns and other legal circumstances. In the latter case, even if the streamer fabricates facts or conceals the truth, it cannot be directly determined that the voluntary reward behavior of the fans is caused by such fabrication or concealment of the truth. An investigation should still be conducted into the reasons for the fans' rewards. The true motives and triggers for fans to give rewards may also have other reasons. It is not appropriate to directly identify the objective behavioral characteristics of the streamer's fraud as the cause of fans giving rewards. The two are not in a direct relationship of causing and being caused, that is, there is no necessarily a causal relationship under criminal law. In practice, there are fans who, despite knowing that the streamer is fabricating facts or concealing the truth, still continue to engage in large-scale rewards and gift-giving. As the saying goes, people are not always completely rational in love. Even if it is believed that there is a certain gap between this relationship and social ethics and morality, it is necessary to be cautious in determining it as a criminal act.

In this regard, some people hold the view that the voluntariness of live-streaming rewards should be based on the premise of "true information". If practitioners defraud rewards through deceptive means, they will be convicted of fraud. This view is actually a case of conceptual substitution, negating the inherent constituent elements of fraud. There is no necessary connection between the voluntariness of live-streaming rewards and the authenticity of the information presented in the live-stream. In other words, regardless of whether the information presented in the live stream is true or not, live streaming rewards may be voluntary. Even if there is false information in the live stream, it doesn't mean that fans have the corresponding wrong understanding. If fans do not have the corresponding wrong understanding and the live-streaming rewards they carry out are based on their own irrationality, they can still be voluntary. Overemphasizing the authenticity of live-streaming information and simply attributing practitioners to fraud just because the live-streamers have adopted so-called deceptive means is a typical case of generalizing from a single instance. That is, it one-sidedly emphasizes and deliberately exaggerates the characteristics of the live-streaming party's fabrication of facts or concealment of the truth, while ignoring the judgment of other elements of fraud such as mistaken understanding and payment of property based on mistaken understanding. Essentially, it negates the criminal constituent elements of fraud. This is clearly an incomplete logic for determining a crime.

3. Accurately determine the amount of fraud to defend for leniency

In specific cases, the main problems in determining the amount of fraud are as follows: First, the amount of fraud is simply determined based on the collection flow of the online live-streaming party; The second point is whether the commission taken by the platform should be included in the amount of fraud and illegal gains. The above-mentioned method of determination has certain irrationality.

First, it is not advisable to simply determine the amount of fraud based on the collection flow of the online live-streaming party. Due to the difficulty of the investigation, it is often impossible to conduct a comprehensive investigation of all the fans who have given rewards. The amount that has not been investigated cannot be recognized as the amount of fraud. Without investigation, it cannot be determined that other reward recipients must have had a wrong understanding, and thus cannot be regarded as having suffered fraudulent losses. From the perspective of the chain of evidence, online platforms usually mix the pre-collected reward funds together and regularly transfer them to the live-streaming operators. Therefore, in this situation, merely based on the collection flow of the online live-streaming provider, it is impossible to determine the specific source of these funds or whether they are the losses of the victims. Furthermore, in criminal legal relationships such as fraud where the victim is clearly present, evidence of the victim's clear and specific statements is required. In other words, the amount of fraud should be determined by combining multiple pieces of evidence such as the victim's statement, transfer records, receipt records, and reward records.

Second, the commission taken by the platform should be included in the amount of fraud, but the live-streaming party should not be harshly blamed for refunding it. Although online live-streaming platforms generally do not constitute joint crimes of fraud, they do provide the technical conditions and user resources of live-streaming platforms for live-streaming operators, objectively facilitating fraud crimes. Therefore, in practice, live-streaming platforms take a certain percentage of the reward money, with some taking a rate of over 50%. This led to a considerable proportion of the actual losses of the victims being taken away by the live-streaming platforms and not actually received by the operators of the online live-streaming. Whether this part of the money should be recognized as the amount of fraud, some hold the view that it should be regarded as the direct cost of the criminal suspect's crime and should be included in the amount of the crime together. Theoretically speaking, it seems to make some sense. The commission taken by online platforms is indeed a cost expenditure for fraudsters to obtain the proceeds of fraud. However, the determination of the amount of fraud does not entirely equate to the determination of the responsibility for refund. It is obviously unfair if the live-streaming operator is required to jointly return the portion of the commission taken by the platform, while the platform has no responsibility to return it at all. It is obvious that online live-streaming platforms cannot evade the responsibility of returning ill-gotten gains by virtue of good faith acquisition or subjective absence of fault. This part of the funds clearly belongs to the ill-gotten gains of the crime and should be recovered in accordance with the law. The recovery should follow the principle of "whoever obtains it shall return it". On the one hand, it is unfair to indulge in the recovery of the actual ill-gotten gains obtained by the platforms, while on the other hand, it is hard to force the live-streaming providers to return the ill-gotten gains as well. Even if in practice it is impossible to order the online platform to return the portion of the commission it has taken, the live-streaming operator should not be held jointly and severally liable for the return of this portion of the commission funds. In other words, the scope of recovery and compensation should be determined based on the actual income of the live-streaming operator.

4. The victim's illegal purpose and fault can be used as points for mitigating the crime

Some fans of online live-streaming, after following the hosts, attempt to have an undisclosed relationship with them, and even communicate with the hosts with the illegal intention of "prostitution". It is really hard to be identified as the so-called "victims" of fraud. This so-called "victim" has had bad motives and illegal purposes from the very beginning. After getting in touch with the live-streamer, they try to achieve their illegal goals by giving rewards. However, once their goals fail to succeed, they accuse the live-streamer of fraud. In this situation, although it cannot be completely ruled out that the live-streamer might have taken advantage of the situation to carry out fraud, and there is indeed a possibility of suspected fraud, it also indicates that the "victim" here is at fault and has an illegal purpose. In response to this situation, it is understandable to be overly critical of the online live-streaming providers. However, it is not advisable to completely side with the "victims". Instead, the online live-streaming providers should be given lenient penalties to achieve a balance between crime, responsibility and punishment.