(By You Yunting) While driving with a map application for navigation, the user’s phone suddenly displays a splash ad that jumps to another application. When the user tries to close it but fails repeatedly, panic sets in, and an accident occurs. Recently, a user who experienced such an incident asked online: “Can the map application be held accountable for the accident?” This question has sparked extensive public discussion. Coincidentally, regulatory authorities have recently launched a nationwide campaign against problematic splash ads, with particular emphasis on those that cannot be closed or that jump without user consent. Today I will examine the issue and my preliminary conclusion is that map service providers may bear some liability, depending on the circumstances, while the driver shall in all likelihood remain primarily responsible.
Under the fault liability principle of the Civil Code of the People’s Republic of China, whether the map service provider shall pay compensation is contingent upon whether it has committed a fault. Fault determination may refer to regulatory provisions. The State Administration for Market Regulation’s Measures for the Administration of Internet Advertising explicitly stipulates that mobile applications publishing splash ads shall distinctively indicate the closing sign to ensure one-click closing. The following acts constitute violations: absence of a closing sign; mandatory countdowns; obstacles to closing the ads such as fake, concealed, or hard-to-locate closing signs; no less than two clicks required to close the ads; or deceiving users into clicking on the ads by false error messages or fake return buttons.
The Practical Guide on Security Requirements for Shake to Trigger Ad Behaviors issued by the National Technical Committee for Cybersecurity Standardization provides specific threshold recommendations for shake triggered redirection: acceleration of no less than 15 m/s², rotation angle of no less than 35°, and action duration of no less than 3 seconds, designed to prevent accidental triggers when users pick up or place down their phones, or jostle in a moving vehicle.
Thus, if a map application’s splash ads cannot be closed with a single click, or if the shake threshold is set so low as to cause abrupt redirection at the slightest movement of the phone, such practices clearly violate regulatory requirements. Legally, such violations may be deemed fault on the part of the map service provider.
Establishing fault alone is insufficient; the plaintiff shall also prove a causal relationship between that fault and the accident. This is often the most challenging aspect in litigation, but it is not insurmountable. The key lies in reconstructing the timeline through evidence. Most new energy vehicles are equipped with dashcams recording the exact time of an accident. Even for older gasoline vehicles without dashcams, police call records and public surveillance footage can help corroborate the approximate time. The internal logs of the map application are another crucial source of evidence, as they record ad pop-up times and jump times. Once the case enters litigation, the driver may request the court to order the map service provider to produce its retained log files.
If the plaintiff can demonstrate that the ad jump time and the user’s operation time closely coincide with the time of the accident, the court may find that there existed a causal relationship between the ad interference and the accident, and thus hold the map service provider partially liable. The provider may argue that a brief ad jump cannot be proven to have caused the driver to panic and misapply the accelerator. In such cases, courts may apply the standard of a high degree of probability, which means that if, based on common sense, an event is highly probable to have occurred, the court may accept it as an established fact. If the ad jump time coincides with the time of the accident and the ad itself indeed violates relevant regulations, the provider will likely be found partially liable for the accident, but the driver shall still bear primary responsibility.
The rationale rests on the statutory obligation of all drivers to drive with full attention. Even when momentarily distracted by ads, phone calls, or in-vehicle conversations, a driver must never wholly relinquish control of the vehicle. Therefore, while splash ads are undoubtedly intrusive, they do not have to be closed immediately; the driver can mitigate the risk by presetting navigation routes, operating the device only when waiting at red lights, or utilizing voice control functions.
One may wonder whether splash and jump ads can be banned by legislation directly. However, such a remedy is far from straightforward. Given that many information and utility applications are offered free of charge, they depend heavily on advertising revenue to remain viable. An outright prohibition of ads will therefore undermine the prevailing business models of many applications.
The core issue lies in striking a balance between commercial advertising and safety. In many scenarios, particularly when the navigation feature of map applications are to be employed while driving, both splash ads and shake-to-trigger ads should be disabled, which is not only a matter of the user’s safety but also a matter of the safety of pedestrians and other vehicles. Therefore, it is entirely justified to impose stricter rules on map applications, such as disabling splash and shake-to-trigger ads by default, or requiring operators to provide a voice control function, allowing drivers to close ads via voice commands without manually touching their phones.
In practice, another salient challenge is that such ads will meet regulatory requirements during specific rectification campaigns but non-compliant practices will often resurface shortly after the campaigns. For a systemic solution, regulators may invoke several corrective measures: requiring app distribution platforms to enhance vetting protocols for ad technologies and reject non-compliant apps; requiring phone manufacturers to grant users permission management for gyroscopes, allowing users to disable the sensors used by shake-to-trigger ads; and publicly exposing repeat violators or even removing them from the app stores.
Another powerful regulatory tool is the imposition of fines. Under current regulations, failure to clearly indicate the closing sign or ensure one-click closing may result in fines ranging from RMB 5,000 to 30,000 for the responsible parties. Admittedly, for a map application with tens of millions of daily active users, this amount constitutes no deterrent. However, if regulators follow the approach previously adopted in the rectification campaign of food delivery platforms – counting each day or each batch of non-compliant ad impressions as a separate violation – the penalties will increase substantially. Only then will those irritating ads that attempt to set up traps on the closing button truly disappear.
Disclaimer of Bridge IP Law Commentary
Short Link: