The Determination Of Unfair Competition Related To Data

In the era of "Internet +" and "The economy of attention",data,a crucial commercial resource,has become the target of fierce competition between Internet companies.However,the rush of technological competition has made it possible for Internet companies to easily break the law in data mart and the unfair competition related to data has begun to spread rapidly.In view of in the Anti-Unfair Competition Law of the People’s Republic of China(2017 version),the lack of special provisions made the general clause become the main resource when judges determine the illegality of unfair commercial practices related to data.However,the general clause lacks applicable conditions,which cause the abuse of it.Similarly,technical means make it’s more difficult to judge these behaviors.Therefore,how to properly and effectively apply the existing anti-unfair competition rules become an urgent which need to be solved instantly.In process of asking questions,analyzing problems and solving problems,this thesis systematically analyzes such commercial acts.Generally,this thesis is over 40,000 words,including the following four parts:PartⅠ: The Determination of Unfair Competition Related to Data.Firstly,this part defines such acts both from generalized and strict perspectives based on the concept of traditional unfair competition and relevant cases.It excludes the act of monopoly and restrictive competition,define it as “the act that the trader violates the business ethics and the good faith principles in the collection,procession,transaction of data.Secondly,by summarizing domestic and foreign cases,it divides these practices into mainly three types: unfair competition of catching,processing and transferring data.Furthermore,it also discusses and compare performances of each category.Thirdly,it analyzes the legal characteristics of this kind of unfair competition,which are(1)the subjects include but not limited to network operators.(2)the acts of unfair competition about data involve advanced technologies.(3)it damages the lawful interests of traders.(4)it damages the legal rights and interests of consumers.Part Ⅱ: The Exploration of Standards to Determine the Unfair Competition Related to Data.From the domestic and international perspectives,the author searches the legislation and legal practices from the United State,EU and China,based on decisions,legislative polices,and investigations of competition law sectors etc.First,the United States focuses on the protection of computer security on public websites and the privacy of consumer’s data,mainly under the Computer Fraud and Abuse Act and the Federal Trade Commission Act.“Unauthorization” is a key factor in determining the misconduct of an act.By comparison,EU regulates it under the General Data Protection Regulation and the Unfair Commercial Practices Directive,which remarkably focuses on the protection of consumer’s privacy on data.Besides,China more cares about the interests of online platforms by analyzing whether the competitors violate the “recognized business ethics” under the general clause of the “Anti-unfair Competition Law”.Next step is the conclusion analyzed and evaluated from the differences between the legal interests,protection methods and damage identification.Part Ⅲ: The Illegality of Unfair Competition Related to Data.Scholars argue to analyze the illegality from separate methods,for instance the “undue influence of damage”,“lawless acts”,or “the combination of above”.The author demonstrates that only the damage without illegal acts or lone misconduct with no bad results cannot be regarded as the unfair competition.Therefore,it’s more objective and accurate to analyze it from the both sides.The former is the standards of “recognized business ethics” and “good faith principle”,the latter is the standards of damage results.The misconduct of unfair practices can be judged based on the violation of contract terms,industrial code of conduct,and the principle of proportionality.First of all,the logic to analyze the violation of contracts is that the perpetrator violates the format or non-form contracts → such contracts have no inconvenience of causing disruption to the market competition or damage to the public interest →thus the conduct is inappropriate.Then,the logic of analyzing violations of industrial code of conduct is: the code is not equal to “recognized business ethics” →the code is not inappropriate → trader’s applying this code is not improper→ actors violate the code →he thus acts against "recognized business ethics" → relevant practice is inappropriate.Furthermore,the logical idea of breaking the principle of proportionality is: whether the purpose of business conforms to the principle of appropriateness → whether the act match with the principle of proportionality in the narrow sense → whether the damage caused by the act is meets the principle of necessity.The illegality of the damage can be explained by whether doer interference or deprive consumer’s rights of privacy,right to know,and autonomy about their data online;or impair the competitive edge of other traders,cause substantial damage,increase the cost of competition.Besides,it’s necessary to consider the order of market competition and public interest to judge the illegality of the consequences.Part Ⅳ: The Assumption of Constructive Conditions of Unfair Competition Related to Data.Based on the above,this section proposes specific constructive requirements under the general provisions of the Anti-Unfair Competition Law.First,it is determined that the traders have lawful interests of data,but the protection is non-static – there is the damage that is illegal.This condition can only become a logical starting for analyzing the misconduct of data competition.After that,it is determined that the competitive relations should be interpreted widely or even abandoned.Once the practice of actor to pursuit data interests interacts with the damage suffered by the third party.As a consequence,one gains but other loose,which can be sure that there is the competitive relationship between the two parties.If unfair acts do not harm the specific traders,it can be abandoned as a constructive element.Thirdly,Ithe writer analyzes the explicit characteristics of three types of data related competition.Eventually,the next paragraph analyzes the damage of lawful interests through substantial and possible damage.