The practice of the code, the live broadcast platform gambling type analysis and its criminal risk identification.
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2023.06.01
On December 23, 2022, the people's Court of Dujiangyan City, Sichuan Province publicly pronounced a gambling case in the live broadcast room of "≥ 9 outdoor" in front of the fighting fish platform. The court held that the behavior of the relevant defendants had constituted the crime of opening a casino, and each defendant was sentenced to fixed-term imprisonment ranging from 3 to 6 years and fined. This case is the country's first live broadcast platform gambling case supervised by the Ministry of Public Security. It was also listed as one of the top ten typical cases in 2022 by the Chengdu Intermediate People's Court.
In fact, as early as 2017, the issue of gambling on the live broadcast platform has received attention. On April 17, 2017, the "Beijing News Review" public number published the article "" Anchor Accompany You to Play Games "Involving Gambling, Beware of Live Broadcasting Platform" Selling Dog Meat with Sheep's Head "", reporting that some live broadcasting platforms set up guessing games to gamble in disguise. On September 21, 2020, the Procuratorial Daily also published an article entitled "Whether the live paid lottery is involved in gambling, more clear standards are needed", calling for further exposure of the way in which online gambling crimes are committed, clarifying the role of the live broadcast platform, and forcing the platform to strengthen management. It can be seen that the gambling problem of the live broadcast platform has a long history. As a new format, the live broadcast platform is easy to be used by criminals. As a tool for the implementation of gambling activities, after years of development and evolution, the criminal risk of gambling on the live broadcast platform has also reached the point where it has to be highly valued.
1. The main manifestations of gambling on the live broadcast platform
(I) Drainage for Gambling Sites
Drainage for gambling websites is a common form of gambling involved in early live broadcast platforms. The so-called drainage for gambling websites means that the operators of gambling websites put advertisements on the live broadcast platform to promote gambling websites, or the platform anchor guides users in the live broadcast room to click on gambling website links or download gambling software during the live broadcast process, and guides users of the live broadcast platform to gamble on the corresponding third-party online gambling platform. In the process of draining gambling websites, although the live broadcast platform has not directly established gambling websites or acted as an agent for gambling websites, it provides services such as advertising and member development for gambling websites, and may also be suspected of opening casinos or helping information network crimes. Activity crime.
On March 29, 2023, the People's Procuratorate of Fenghua District, Ningbo City, Zhejiang Province announced a live broadcast of "gambling" through its official WeChat public number. The perpetrator of the case was a cross-border online gambling platform during the live broadcast of sports events. Drainage, induce users to download and install gambling-related software in the live broadcast room, and click on the link to the gambling website. The perpetrator of the case was eventually investigated for criminal responsibility by the people's court for the crime of helping information network criminal activities.
The essence of live gambling is the same as that of traditional casinos. It is just to use the form of live broadcasting to move traditional gambling games such as "Mark Six Lottery" and "Niu Niu" into the live broadcasting room, breaking through the space limitation of traditional offline gambling and giving participants a new experience. Therefore, live gambling is actually a new form of traditional gambling in the live broadcast era. It is just a type of online gambling. There is nothing special about it, and it is easy to identify in judicial practice.
The Supreme People's Procuratorate released on November 29, 2021 five typical cases of procuratorial organs punishing the crime of opening casinos in accordance with the law-the case of 14 people such as so-and-so opening casinos-is a typical case of traditional offline casinos turning into online gambling with the help of live broadcast technology. The criminal group in this case established an online gambling platform through domestic instant messaging application software, organized Chinese citizens to watch live videos of overseas gambling through live websites and accept bets, and made profits by washing codes and returning water from casinos. The actors in the case were found guilty of opening a casino.
(III) platform incentive mechanism gambling
Due to the obvious gambling characteristics of draining gambling websites and opening gambling live, it has become more and more rare in today's stricter supervision. At present, it is replaced by gambling-related behaviors hidden behind various dazzling recharges, rewards, rewards, game masks, etc. in the live broadcast room. At a time when the live broadcast economy is prevalent, it is understandable that the live broadcast platform designs some incentive mechanisms for the purpose of attracting users. However, these incentive mechanisms of the live broadcast platform are easy to be used by criminals. In practice, there are many platform anchors who set up casinos in the name of rewards, games and lottery activities.
Take the first gambling-related case of the country's first live broadcast platform supervised by the Ministry of Public Security mentioned at the beginning of this article-the case of the opening of a casino in Douyu "Nine Outdoors" as an example. The trial court of the case found out that the live broadcast room of the "9 outdoor" account used the live broadcast platform "fan welfare club" lottery module to set the winning amount and number of lottery tickets in advance, organize fans in the live broadcast room to carry out the lottery, and distribute the winning cash to the winners after the lottery was completed. It can be seen that the operator of the "nine outdoor" live account is gambling with the lottery mechanism of the live broadcast platform, which is a typical situation of using the platform incentive mechanism to implement gambling.
In view of the use of the incentive mechanism of the live broadcast platform for disguised gambling has become more and more common, because almost every live broadcast platform has a variety of reward, lottery and other incentive mechanisms, the gambling-related incentive mechanism and the normal business rules of the live broadcast platform to set a clear distinction between the two is more difficult. The following discussion will focus on the criminal risks and prevention and control of gambling related to the incentive mechanism of the live broadcast platform.
2. Incentive Mechanism The Operation Mode of Gambling-related Live Broadcasting Platform and Its Inherent Causes
(I) the basic mode of operation of the incentive mechanism
Judging from the current situation of each live broadcast platform, although the ways and names of users are different, the gambling-related incentive mechanism can basically be summarized into the following basic operation mode: recharge → disguised gambling → cash out.
Specifically, the first step for users to enter the live broadcast platform is to recharge. In practice, this kind of recharge is generally expressed as buying the virtual currency of the platform with cash. Of course, different platforms have different appellations for their respective virtual currencies, but in essence, users recharge on the platform, and there is no difference in essence.
After users use cash to recharge on the platform, they will generally use the platform's virtual currency to buy gifts to reward the anchor, or use virtual currency as chips to participate in the platform's lottery, guessing games and other activities, these activities are essentially guessing size, gambling win or lose, with the nature of gambling. This is the second stage of gambling platform, namely disguised gambling. The gambling incentive mechanism of live broadcast platform has been the most direct embodiment in this stage.
After platform users use virtual currency to buy gifts to reward platform anchors or participate in various incentive activities of the platform, gambling platforms often have the last link, that is, the reverse exchange of virtual currency, that is, users will exchange their virtual assets in the platform account back to RMB, completing the closed loop of the gambling chain.
However, under the pressure of supervision, the live broadcast platform has rarely set up cash-out function directly on the platform, and almost all gambling platforms realize cash-out for users in a more obscure way. Specifically, in practice, platform users mainly cash out through the following three ways:
1. To the anchor to sell the platform virtual property cash.
In practice, many users will directly reach an agreement with the anchor of the live broadcast platform in private, by the user to reward, give gifts and other ways to the anchor to deliver the platform virtual property, and then by the anchor based on the value of the virtual property received, in a certain percentage of the discount to the user in private to pay cash. The essence of this model is that the anchor acquires the platform virtual property from the platform user.
Take the case of (2019) Zhejiang 0381 Xingchu No. 1022 tried by the People's Court of Ruian City, Zhejiang Province as an example. The case found out that gamblers gambled by sitting or betting in the "car dealers' supremacy" game after recharging the corresponding virtual currency with RMB at the gambling site or software. The virtual currency after gambling can be converted into bonus gifts or props such as "song ordering dolls" and "chat dolls, cash out or in disguise by rewarding the anchor. The case is that gamblers cashed out by selling platform gifts through anchors.
2. To "consignee" and other intermediaries to sell platform virtual property cash.
Due to the demand of many platform users to cash out the virtual property of the platform, some live broadcast platforms also have intermediaries who specialize in purchasing the virtual property of the platform. These intermediaries have cooperative relations with the anchors and are active in various live broadcast rooms, replacing the anchors to purchase gifts from the platform users for compensation, and then resell them to the platform anchors for cash out by brushing gifts to the cooperative anchors, such intermediaries are called "merchants" or "consignee" on some platforms ". Platform users to the "merchant" or "consignee" to sell the platform virtual property to complete the cash.
For example, in the case of (2019) Yue 0106 Xing Chu No. 1689 heard by Guangzhou Tianhe District People's Court, the defendant in the case used video interactive guessing games and card interactive guessing games set up on the platform to attract players to bet on virtual coins for gambling, and then the system automatically settled the winning or losing according to the guessing results. At the same time, some defendants in the case were as so-called "merchants" to provide players with the cashing of virtual coins and real coins.
3. Cash out through third-party trading platforms
In addition to the above-mentioned anchors, "consignee" and other private virtual property cash-out channels for live broadcast platforms, in practice, some well-known virtual assets of live broadcast platforms can even be cashed out directly on some mainstream third-party trading platforms. In writing this article, the author also tried to search for the virtual currency of a well-known live broadcast platform on a well-known trading website, and found that there are a large number of merchants on the trading website who claim to be able to recover the virtual property of the platform at a high price.
(II) Incentive Mechanism Intrinsic Causes of Gambling
1. The cooperation mode between the live broadcast platform and the platform anchor provides a natural way for platform users to cash out.
The behavior of a user exchanging cash for virtual currency or other virtual products on a live platform is generally recognized as an act of purchasing a virtual product on the platform. This one-way flow of user funds on the one hand for the platform to avoid gambling, money laundering and other legal risks, on the other hand, because the sale of virtual products to users will eventually obtain the user's funds, but also in line with the interests of the platform, so in principle, the platform will not accept the user reverse exchange or refund. In practice, some platforms will even directly indicate this position to users in the user agreement or recharge agreement. For example, the user agreement of a well-known live broadcast platform inquired by the author states that "based on the nature and characteristics of virtual currency and virtual products, after users successfully purchase virtual currency, the company will not provide refund, return and exchange services for virtual currency and virtual products".
However, different from the general network platform, the live broadcast platform needs to cooperate closely with the network anchor. In order to attract the anchor to enter the platform, the anchor must distribute the benefits. In practice, this distribution of benefits is reflected in the share of the live broadcast platform and the platform anchor to the user's reward, that is, the platform will make cash settlement with the anchor after the user rewards. It is also in the process of cash settlement between the anchor and the platform that the virtual property of the platform actually completes the reverse exchange of cash, that is, the cash of the virtual property of the platform. Therefore, it can be said that the cooperation mode between the live broadcast platform and the platform anchor provides a natural way for platform users to cash out, which is also the reason why the three aforementioned cash-out methods cannot bypass the platform anchor.
2. All parties to the live broadcast platform are driven by interests.
Analyzing the internal causes of gambling in the incentive mechanism of the live broadcast platform cannot avoid discussing the interest relationship of the relevant stakeholders of the live broadcast platform. The live broadcast platform, the live broadcast platform users and the platform anchor are the three most important stakeholders involved in the live broadcast platform. In the process of gambling related to the platform incentive mechanism, the interests of the above three parties have been met. Therefore, in a sense, the gambling related to the live broadcast platform incentive mechanism is actually the inevitable result of the relevant parties driven by their respective interests.
First of all, for the users of the live broadcast platform, some users themselves have a strong demand for gambling. In the case of gambling related to the platform incentive mechanism, they can participate in gambling through the live broadcast platform, and the legitimacy of the platform surface also provides protection for their participation in gambling activities.
Secondly, for the live broadcast platform itself, the homogenization of the live broadcast platform is becoming more and more serious, it is more and more difficult to attract and retain users, and in the market environment of increasingly fierce competition among various platforms, it is difficult for the live broadcast platform to attract new traffic through ordinary live broadcast content. therefore, various incentive mechanisms for users are born in response. The normal incentive mechanism is actually a normal business behavior for the platform, but objectively speaking, the boundary between the normal incentive mechanism and the gambling-related incentive mechanism is not clear, which also leads to the inevitable risk of violating the penalty when some live broadcast platforms set up the incentive mechanism. Moreover, gambling-related incentive mechanism may instead become a traffic password in a gray area for some live broadcast platforms in the market. For these platforms, the establishment of gambling-related incentive mechanism can attract user traffic and improve user viscosity on the one hand. On the other hand, it can encourage users to recharge on the platform, which is "why not do it" for platforms that take user recharge as the main source of income ".
Finally, the platform anchor. For the platform anchor, its main income comes from the user's reward share, that is, the more users reward them, the higher the income. In addition, some platforms also set up incentive mechanisms for anchors, requiring anchors to complete a certain amount of reward, or linking the anchor's percentage of commission to the amount of user reward received, in order to encourage anchors to obtain user rewards. Therefore, the general platform anchor is also willing to reach an agreement with the user in private, in order to accept the user's reward in the hands of the platform virtual property, and then according to a certain proportion of private discount to the user, to pay cash to the user. In this case, on the one hand, the anchor can complete the performance specified by the platform and obtain a higher share of the platform, on the other hand, it can also increase the popularity of its live broadcast room and attract traffic. Therefore, to help users complete the platform virtual property cash for the platform anchor can be said to be a sure-fire business.
3. Criminal risk identification of gambling in the incentive mechanism of the live broadcast platform.
Although Article 303 of China's Criminal Law stipulates the crime of gambling and the crime of opening a casino, it does not specify the specific meaning of "gambling" itself. The Supreme People's Court issued the No. 146 guidance case of the judgment point that: the result of the so-called transaction is "accidental, speculative and lucky", and that the essence of gambling behavior is "bet size, gambling win or lose".
It is generally believed that gambling consists of two main elements:(1) the requirement that gambling be determined by chance, I .e., gambling is lucky; and (2) the outcome of gambling is linked to the gain or loss of property. Therefore, the criminal risk of gambling on the live platform should also be judged from these two angles.
(I) Is the incentive mode set by the live broadcast platform lucky?
The so-called good luck refers to the chance, the result has an uncontrollable chance. As mentioned earlier, in order to attract customers to recharge or reward, the platform will often set up a variety of lottery, gift, games and other mechanisms, and no matter what the specific form of the platform's incentive organs, the key to judge whether these lottery and other incentive mechanisms set up by the platform are gambling-related is whether the incentive mechanism is lucky.
When judging whether the incentive mechanism of the live broadcast platform is lucky, the comparison between the cash or virtual property invested and the value of the virtual property available will be the main object of concern. Specifically, whether the virtual property proceeds received by platform users after investing cash or virtual property are certain and whether the value of the virtual property obtained under uncertain circumstances differs significantly from its investment. For example, many platforms are designed to encourage users to recharge the virtual property gift mechanism in the process of recharge, such as a certain percentage of the recharge amount of the platform's virtual currency. However, in this case, no matter how high the amount of virtual coins or other virtual property that the platform gives to the user should not be considered gambling, because the platform's such gift is certain and does not have a lucky nature. Another example is that some platforms set up a lottery process in order to encourage users to reward anchors. Users can get a certain lottery opportunity every time they reward. At this time, if the value of virtual property returned to users by lottery results is quite different from the value of virtual property invested in the reward process, thus inducing users to have interest in repeated betting, the incentive mechanism may be used by criminals in this case, there is a risk of gambling.
(II) Can the live broadcast platform directly or indirectly realize the cashing of virtual property of the platform?
If the live broadcast platform is only lucky in the incentive mechanism, but the virtual property used for betting in the platform cannot be realized, the second step in judging whether the live broadcast platform is involved in gambling is to confirm whether the live broadcast platform can cash out the virtual property of the platform because the result of gambling cannot be converted into the winning or losing of property.
Several channels through which the platform's virtual property may be cashed out have been mentioned above, but from the perspective of the determination of criminal responsibility of the live broadcast platform, the cashing mode can be divided into two types, one is that the live broadcast platform itself has set up a cashing channel, and the other is that users complete the cashing out by purchasing the platform's virtual property through a third party other than the live broadcast platform such as the anchor, the "consignee" and the third party.
In the case that the live broadcast platform directly sets up cash-out channels, it is most convenient for users to cash out. For example, in practice, some platforms may directly set up cash-out functions in the software, and some platforms allow users to reward themselves in order to avoid supervision. Regardless of the specific method, in this case, the platform allows users to directly exchange the virtual property of the platform obtained through the platform incentive mechanism back to cash without the help of a third party to complete the cashing of the winning or losing results of gambling. In this case, the live broadcast platform is easily used by criminals as a tool to open casinos, and the platform itself undoubtedly faces more serious criminal risks.
Under the background of stricter supervision, there are currently few live broadcast platforms that allow users to cash out directly through the platform, and gambling gangs are more likely to cash out through third parties other than platforms such as anchors. In this case, the platform itself does not design the cash-out function, and the third-party personnel such as anchors participate in the user's cash-out, but this does not mean that the platform does not need to bear criminal responsibility. In fact, the platform has regulatory obligations for all parties involved in the live broadcast. If they know that users use the platform incentive mechanism to gamble and cash out the platform's virtual property, but do not take measures, they may be identified by the judicial authorities as a joint crime with the personnel who directly open the casino or be investigated for criminal responsibility by the judicial authorities for the crime of helping information network criminal activities.
4. Criminal risk prevention and control of gambling on live broadcast platforms
As a new thing with rapid development in recent years, the criminal risk of gambling should not be underestimated. With more and more emphasis on corporate compliance development today, it is recommended that the live broadcast platform conduct compliance reviews from the following aspects to avoid criminal risks.
First, the platform's advertising and external links are strictly reviewed. The live broadcast platform shall strictly screen the partners to avoid advertising on gambling sites or external links to gambling sites on the platform.
Second, the platform incentive mechanism for compliance review. In general, live broadcast platforms should avoid designing incentive mechanisms with the nature of shooting luck. When the nature of shooting luck cannot be avoided, attention should also be paid to avoiding too great a disparity between the value of the virtual property invested by users during the activity and the value of the virtual property that may be obtained through the activity, so as to prevent the relevant incentive activities from being used by lawbreakers, being recognized by the judicial organs as a small and broad gambling game, and eventually facing criminal risks.
Third, avoid the emergence of platform cash-out mechanism, strengthen the supervision of co-anchor and live broadcast room. The live broadcast platform should avoid setting up the cash-out function on the platform, clarify the nature of the transaction with the user to purchase virtual currency or other platform virtual property, and ensure the one-way flow of the user's top-up funds. At the same time, the live broadcast platform should also strengthen the management of cooperative anchors, and make it clear that the anchor shall not assist users in cashing out or engage in illegal and criminal activities such as gambling during the live broadcast. But at the same time, the platform should also pay attention to avoid setting unreasonable performance requirements for cooperative anchors.
Fourth, avoid excessive publicity of incentive activities such as winning prizes and lucky draws, especially for specific winning cases. The live broadcast platform shall adhere to the entertainment orientation of various incentive activities such as winning prizes and lucky draws, avoid over-promotion of winning prizes and lucky draws on the platform or platform live broadcast room, and avoid creating a gambling atmosphere on the platform.
Fifth, fulfill the responsibility of supervision, pay attention to users to report complaints, and establish a complete reporting and verification system. The live broadcast platform should fulfill its own regulatory obligations, actively assume social responsibility, and deal with all kinds of gambling-related behaviors on the platform in a timely manner. In particular, the live broadcast platform should check the user's gambling-related complaints in a timely manner, deal with relevant gambling-related activities in a timely manner, and establish a complete mechanism of "reporting complaints → verification → processing → feedback → improvement.
[Practice Introduction]
Senior Partner of Shengdian Law Firm, Deputy Director of Criminal Defense Committee. Master of Law from Southwest University of Political Science and Law, Legal Advisor of the Economic Crime Investigation Brigade of the Longhua Branch of the Shenzhen Public Security Bureau, Expert Lecturer of the 10th Shenzhen Lawyers Association Securities and Futures Fund Legal Professional Committee, and the 11th Shenzhen Lawyers Association Financial Crime Defense Legal Professional Committee Deputy director, member of the 12th Guangdong Lawyers Association Economic Crime Defense Professional Committee. He was involved in the compilation of "Analysis of Criminal Legal Practice of Financial Warning Line Securities" and "Research on Difficult Problems of Financial Fraud Crime: Theoretical Analysis and Practice".
[Practice Field]
Since his practice, Zhang Zizhu has focused on criminal legal business, especially in the defense of various economic and financial crime cases, and has represented hundreds of criminal cases concerned by the media and society.
[Contact Information]
Telephone:13530576962
E-mail:zhangzizhu@shengdian.com.cn
[Practice Introduction]
practicing lawyer of shengdian law firm, graduated from law school of lanzhou university, practicing fields: criminal defense, criminal accusation, criminal risk control.
[Contact Information]
Telephone:13699850849
E-mail:zhonghaiweiashengdian.com.cn
Editor: Zhu Yiying
Editor: Feng Ruotong
Reviser: Huang Ting
