This case between Plaintiff Hu and a well-known online travel agency (OTA) was widely quoted by news media as China's first big-data defrauding case. In December 2022, the Zhejiang Supreme Court denied the OTA's retrial request after having reviewed the statements made by the OTA and Llinks respectively. Partner Dr. David Pan and Contractual Partner Mr. Nigel Zhu of Llinks Law Offices LLP successfully represented Plaintiff Hu and protected legitimate rights of the client.
Case summary
Hu is a Diamond VIP customer of the OTA. According to the OTA's promotion materials, privileges for Diamond VIP customers include 15% discount on accommodation bookings. On July 18, 2020, Hu booked a hotel through an agent channel of the OTA's APP at a price of RMB 2,889, but when she checked out, she found that the price stated in the hotel invoice was only RMB 1,377.63. Hu believed that the OTA misused her personal information by labeling her as a high net worth customer and providing her a higher price than average customers, which constituted fraud and infringement of her rights and interests on personal information. Then she filed a lawsuit against the OTA.
On July 7, 2021, the first instance court, the People's Court of Keqiao District, Shaoxing, Zhejiang Province rendered a verdict ruling that the OTA defrauded Hu and should refund the payment and compensate three times of the room rate; the OTA unlawfully collected Hu's personal information and should provide her an option to use the APP even if she did not agree to the APP privacy policy.
The OTA appealed. Llinks continuously represented Hu in the second instance of the case. On December 31, 2021, the Intermediate People's Court of Shaoxing, Zhejiang Province ruled that the OTA committed fraud against Hu and explained in the judgement that the OTA's processing of consumers' personal information went beyond what is permitted by law.
In March 2022, the OTA filed the request for retrial with the Zhejiang High People's Court. Llinks continued to represent Hu by responding to the OTA retrial request and participating in the whole retrial process. On November 21, 2022, Zhejiang High People's Court issued the civil decision on the retrial: After careful review, the court ruled that the factual findings in the second-instance judgment were clear, the application of law was correct, neither the trial procedures nor substantive hearing were improper, and thereby the OTA's arguments for retrial cannot establish and the retrial request will be denied.
The results of the first, second instance and retrial of this case are of great significance to the protection of consumer rights and personal information. Considering that personal information has not yet been recognized as a civil right, the rulings of courts at all levels in Zhejiang Province are undoubtedly cutting-edge and forward-looking, making it a useful attempt for the judicial adjudication of the protection of consumers' personal information. In addition, the court also discussed the notification obligation of the Internet platform operators to travel agencies and consumers, and the legal liabilities arising from failure to fulfill such obligations. This case will greatly benefit the informed consumption of Internet users and the healthy development of Internet platforms.
