Virtual digital people endorsements are becoming increasingly popular with brands due to their controllability and the acceptance of the universe era. Compared to star endorsements, virtual digital people have the nature of “never collapse”, and they can conduct uninterrupted live streaming without time and energy constraints, reducing the cost of live streaming. However, the State Administration for Market Regulation and other relevant authorities are paying close attention to the potential for falsifications, live sales of fakes, unfair competition, trademark infringement and other phenomena in star endorsements and live streaming. Therefore, any party involved in virtual digital people endorsements must pay attention to avoid serious consequences such as administrative penalties, account blocking, and brand image and star traffic loss.
Advertising Law involves four types of actors: advertisers, advertising operators, advertising publishers, and advertising spokespersons. Virtual digital people, such as celebrities, cannot be a civil subject under the law and thus do not meet the qualifications of an advertising spokesperson. “Middle people” who output the language, behavior, and actions of virtual digital people are not considered an “advertising spokesperson” as they do not endorse products or services with their own name or image. However, real-person virtual avatars may be identified as an “advertising spokesperson”” as the virtual digital people image points to the real-person prototype. In April 2021, the 25th article of the “”Regulations on Management of Network Live Broadcast Marketing (Trial)” jointly issued by seven departments stipulated that “operators of live broadcast rooms and live broadcast marketers shall obtain the consent of the portrait right holders when using other people’s portraits as virtual images for network live broadcast marketing activities”.
Virtual digital person ads are becoming increasingly popular, but there is no unified identity registration and identification mechanism for real people and virtual digital persons. It is suggested that real people and virtual digital avatars of celebrities be determined as “advertisers” based on the similarity of virtual digital person ads, commercial benefits, and authorized advertising. To avoid consumer disputes, it is recommended to clearly inform consumers that the “endorser” is the virtual image of the celebrity and does not equal the celebrity themselves. Moreover, celebrities should strictly review the endorsed brands to prevent breaching any contractual obligations. This will ensure that virtual digital person ads are compliant with the Advertising Law and that consumers are not misled.
Virtual digital humans are increasingly being used to endorse commercial ads, but with no corresponding real-life celebrities as “advocates” taking legal responsibility. According to the Advertising Law, the corresponding legal responsibility should be borne by the advertiser, the advertisement publisher, and the advertisement operator. The virtual digital human operator and brand should pay attention to three legal risks: the three-year industry ban for false advertising, the image of the virtual digital human itself, and the possibility of other virtual digital humans operated by the virtual digital human operator. To avoid legal risks, the virtual digital human operator and brand should be cautious when it comes to advertising advocacy.
The Advertising Law prohibits the advertising of special drugs such as anesthetics, psychotropic drugs, toxic drugs for medical use, and radioactive drugs. Advertising of other prescription drugs is limited to medical and pharmaceutical professional journals designated jointly by the Ministry of Health and the State Administration of Drug Administration. Additionally, the Advertising Law has special restrictions on the content and form of advertising in other fields such as medical drugs, medical devices, health foods, pesticides, veterinary drugs, feed and feed additives, tobacco, alcohol, education and training, investment, and real estate. False or misleading language must not be used in the description of the recommended products, and platforms for live marketing should strengthen the management of new technology, new applications, and new functions. When virtual digital human images are used for livestreaming, assessment should be conducted on the risks of user information and privacy leakage and other potential risks, and consumers shall be clearly prompted.
