Legal Regulation Of Unfair Competition Related To Big Data

Benefit from the rapid development of Internet and information technology,the digital economy is booming all over the world,becoming a new economic form after agricultural economy and industrial economy.As a new stage of information technology development,big data plays an increasingly important role in the digital economy.The development of economy and science and technology has always been ahead of the establishment of system and order.In disorder and chaos,market chaos is constantly emerging,and the problem of illegal acquisition,sale,provision and disclosure of personal data is frequent.In order to obtain and maintain competitive advantage,operators seize and illegally use data around each other,and the phenomenon of Behavior Anomie and market failure is common.China’s courts have applied the anti unfair competition law to adjudicate a number of unfair competition disputes related to big data,explored the competition rules in the field of big data,and tried the legal interest protection mode of big data.The existing judges generally confirm that the holding and use of big data can form a competitive advantage,and the theoretical and practical circles have formed a consensus of "data value".In the adjudication process of many big data disputes at home and abroad,the anti unfair competition law has become the first choice of legal basis for many parties.This phenomenon closely links the two topics of "big data" and "unfair competition",which is the motivation of this paper.At present,the research results of big data unfair competition are not rich and scattered.In order to promote the in-depth development of research work,it is necessary to build a comprehensive and systematic regulatory theoretical system of big data unfair competition.Therefore,this paper is divided into eight parts to study the regulation of big data unfair competition step by step.In the introduction part,the author introduces the background and research value of this paper from a macro perspective,starting from the unfair competition phenomenon around big data in the process of digital economy development.The research value of this paper includes: enriching the academic value of the competition theory in the field of big data,guiding the practical value of the competition behavior in the market of big data and helping the innovation and development of the industry of big data.In the introduction part,the research status of this topic at home and abroad is comprehensively reviewed,the research trend in this field is summarized,and the overall framework and research methods are determined.The first chapter discusses the basic problems of big data unfair competition.First,combining the two related concepts of data and information,the paper defines the concept of big data from the broad and narrow sense,and makes a boundary between big data and database,algorithm,personal data,artificial intelligence,Internet of things,cloud computing.Secondly,according to the general to special approach,from the characteristics and essence of market competition and unfair competition,the connotation of big data unfair competition is defined.Thirdly,the paper analyzes the causes of big data unfair competition from three perspectives: data supply and demand contradiction,economic interest driven,and lack of competition rules.Fourth,it analyzes the characteristics of market competition in big data field,discusses the premise,subject and object of market competition in big data field,examines the external situation of market competition in big data field,and analyzes the main characteristics of market competition in big data field.Fifthly,it discusses the relationship between big data and competitive advantage of operators,and makes clear that operators can form their own competitive advantage based on big data,which is manifested in three aspects:big data access advantage,big data value advantage and big data analysis advantage.The second chapter discusses the theory and practice of regulating big data unfair competition.The first section studies the regulatory model of big data and the regulatory path of anti unfair competition law.This paper comprehensively combs the two models of big data regulation in the theoretical circle: Legislative empowerment model and behavior regulation model,and makes clear that the behavior regulation model specifically includes three paths: contract law regulation,tort law regulation and competition law regulation.This paper discusses the main advantages of applying anti unfair competition law to protect the rights and interests of data and to regulate data related behaviors.Anti unfair competition law,as a specific path of behavior regulation mode,does not aim at creating rights.It is necessary and inevitable to apply anti unfair competition law to protect data rights and interests and regulate data related behaviors in the field of market competition.The second section demonstrates the premise that the rights and interests of operators’ big data are protected by competition law.Based on the labor input,operators have the legal interests that should be protected.To affirm and protect the rights and interests of operators is the internal requirement of maintaining the competition order of digital market.The illegal act does not produce legal interests,and the legitimacy is the premise for the data rights and interests of operators to obtain the protection of anti unfair competition law.The third section discusses the necessity of regulating big data unfair competition.From the four perspectives of competition regulation industrialization,digital market competition order,data subject rights and interests protection,and data industry innovation and development,this paper answers why regulation is needed.The fourth section discusses the feasibility of regulating big data unfair competition.Focusing on the rudiments of the existing applicable regulatory basis of the anti unfair competition law and the successful practice of the court’s regulation of big data unfair competition,this paper answers the question whether the regulation can be implemented.Section V,fully explore the raw materials and details of the competition rules in the field of big data,and point out that the source of the rules regulating the unfair competition of big data lies in big data regulatory laws and regulations,technical standards in the field of big data,self-discipline norms and industry practices.The third chapter defines the behavior patterns and recognition standards of big data unfair competition.According to the basic principle of the classification of unfair competition behavior,after the classification of unfair competition behavior,various behavior types should have relative independence.In an ideal typed clause,all kinds of behavior types should meet the requirements of mutual exclusion and circumspection.This chapter deeply studies three kinds of common unfair competition behaviors of operators around big data:infringing trade secret data behavior,improper access to data behavior and improper use of data behavior,and proposes two new types of big data unfair competition behaviors:improper open data behavior and improper shielding data behavior.For each kind of behavior type,it makes empirical observation from the litigation cases and market disputes at home and abroad,and then analyzes the accountability and punishment of the behavior,and finally determines the elements of the behavior,and defines the recognition standard.The fourth chapter analyzes the real dilemma of regulating big data unfair competition.At present,the dilemma of regulating big data unfair competition is mainly manifested in two aspects: legislation dilemma and practice dilemma.The legislative dilemmas are as follows: the lack of special regulation clauses directly leads to the unclear recognition standards of the legitimacy of big data competition behavior and the absence of legal evaluation,which is difficult to meet the practical needs of the orderly development of the current big data industry;the Internet special clauses are difficult to take the heavy responsibilities due to their legislative limitations,and the macro abstraction of general clauses leads to high regulation costs,which is difficult to meet the practical regulatory needs.The practical dilemmas are as follows: it is difficult to find and provide evidence due to the concealment of data behavior,the gap between civil and criminal transition due to the absence of administrative regulation;the interest balance is complicated due to the diversity of rights and interests subjects.In the regulation process of big data unfair competition,the most prominent problem is that the multiple interests protected by the anti unfair competition law are not effectively balanced,especially the competition for the interests of consumers The absence of legal protection,to a certain extent,affects the realization of the legislative goal of anti unfair competition law;in addition,the difficulty in defining data loss leads to the customary discretionary compensation,which affects the authority of the judiciary.Through the study of the current regulatory dilemma,identify the problems that need to be solved,and clarify the work direction for the construction of regulatory system.The fifth chapter constructs the regulation system of big data unfair competition.The first section is to clarify the basic idea of regulating big data unfair competition and establish the proper position of regulation.Guided by the existing problems,this paper puts forward three basic regulatory concepts: first,set up the concept of data circulation,aiming to break the "data island";second,adhere to the concept of "using as many as possible",aiming to resolve the "data lock";third,strengthen the concept of data security,aiming to eliminate the "data panic".The second section,the construction of legislative regulation.According to the legislative mode of "combination of total and score",taking the basic law of competition as the general command and the detailed rules of regulation as the specific supplement,this paper proposes to form a scientific and comprehensive regulatory basis system.The specific amendments and legislative suggestions include: adding "data clause" in the Internet special clause of the anti unfair competition law,and making big data unfair competition by the State Administration of market supervision and administration The detailed rules of regulation,i.e.some regulations on prohibiting unfair competition of big data,and the draft of legislative proposal for some regulations are proposed.The third section is to improve the administrative regulation.In the aspect of law enforcement subject,by analyzing the anti unfair competition law enforcement system and its disadvantages in China,it is suggested that the market supervision and administration department should exercise the unified law enforcement power of big data anti unfair competition.The legislation related to big data outside the anti unfair competition law should no longer stipulate the protection of competition.The market supervision and administration department can establish a large number of full-time or parttime employees According to the team of experts,the problem of multiple law enforcement and unclear rights and responsibilities can be solved.In terms of law enforcement basis,the general provisions of anti unfair competition law should be excluded from the basis of administrative law enforcement,and after the improvement of relevant legislation,the substantive basis of administrative law enforcement should not only be limited to the "data provisions" of anti unfair competition law,but also include data regulatory laws and regulations and relevant mandatory technical standards.Section four,improve the judicial regulation.In view of the nihility and imbalance of consumer protection in judicial practice,this paper puts forward to give direct protection rather than indirect protection,equal protection rather than secondary protection to consumers in the field of big data.In particular cases,it should also focus on protection.At the same time,it should give consumers groups the right to sue for unfair competition and exclude individual consumers’ right of action,and the function of consumers’ right of action It should be positioned as a single function to prevent unfair competition and should not be given the function of claim for compensation.In view of the difficulties of proof and big data loss in the field of big data,this paper puts forward to reshape the rules of proof and carry out big data value evaluation,and reverse the burden of proof in the case of improper access to data.The research on big data value evaluation and asset pricing should move from theory to practice as soon as possible,and launch a number of big data asset evaluation institutions for court trial Case selection.The conclusion part,looking forward to the future trend of big data unfair competition regulation,looking forward to the development of related research.This paper holds that the anti unfair competition law is bound to provide limited and moderate protection for big data,which is necessary and indispensable to maintain the market order in the field of big data,rather than the full and overflow protection.Moderate protection also means that,on the premise of ensuring data security,data circulation is more important than data protection,and data utilization is more important than data protection The protection is more worthy of attention.It has become the general consensus and action consciousness of the majority of operators.With the improvement of anti unfair competition law and data supervision laws and regulations,in the two fields of anti unfair competition law and civil law,a competition law protection system and a general protection system are respectively formed around the rights and interests of big data.The two functional sections do not intersect,but complement each other,and integrate organically.The market competition rules in the field of big data are becoming increasingly clear and mature,and the boundaries between what can be done and what can not be done in the market competition are becoming clear and no longer chaotic;the unfair competition of big data has formed a relatively rich group of cases,which has laid a solid foundation for the type of behavior,and the opportunity for the legislative level to respond directly is becoming more and more mature.The special rules for unfair competition of big data are being revised and added The system clause becomes the natural choice.