Research On Legal Regulation Of Network Traffic Hijacking Unfair Competition Behavior

With the continuous development and innovation of network technology,the Internet era pays attention to traffic as the king.Whoever has traffic,who has the magic weapon to generate revenue.The competition among Internet companies has also evolved into a competition for traffic.This has led to the frequent occurrence of unfair competition in network traffic hijacking,which greatly disrupts the market competition order,which is not conducive to the healthy development and innovation of the Internet industry.The interests also caused a certain degree of infringement.Effectively regulating network traffic hijacking unfair competition behavior is of great significance for maintaining a fair competition order in the Internet industry and promoting the development and innovation of network technology.On November 4,2017,the 30th meeting of the Standing Committee of the 12th National People's Congress revised and adopted the new Anti-Unfair Competition Law,and clearly defined the"unfair competition behavior of the Internet"in the Internet provisions.To a certain extent,this clause has significant practical significance for solving the current unfair competition behavior of network traffic hijacking.However,at present,China's theoretical research on the unfair competition behavior of network traffic hijacking is not mature enough.How to define the network traffic hijacking unfair competition behavior and its identification standards,how to effectively protect the legitimate interests of Internet enterprises and network consumers,etc.They are all legal issues that need to be solved urgently.Therefore,effective legal regulation of network traffic hijacking of unfair competition is urgent for both theory and practice.On the basis of data analysis and research,this paper summarizes the nature of network traffic hijacking unfair competition behavior,that is,technical contact through technical means or business model,so that network traffic that should belong to others is forced to flow into specific objects and has improper Sexual situation.At the same time,through the research and analysis of specific cases,this paper summarizes the specific manifestations of network traffic hijacking,and clarifies the adverse effects of network traffic hijacking unfair competition behavior,and also reflects the necessity of its regulation.Based on a large number of judicial case studies,this paper concludes that the judging of unfair competition behaviors in network traffic in judicial practice generally has illegitimate and subjective faults from whether the original defendants have a competitive relationship or whether the behavior is different from the normal interference behavior.And consideration of damage results.For example,in the identification of competitive relations,the generalized competition relationship is often adopted.Even if the network operator who is robbed of network traffic is not a competitor in the same industry as the hijacked party,as long as the hijacking behavior violates the honesty and credit,the traffic is caused to the hijacked person.Losses of related interests can also be considered competitive.The discussion of the judicial adjudication rules in this paper is also to solve the above objective aspects,that is,the determination of impunity.Once the behavior meets the constituent elements,it actually conforms to the rules of the referee,and the two are unified.There is also a certain relationship between the"least privilege"rule and the"non-public interest must not interfere"rule.The use of the "least privilege" rule should also consider whether the behavior of the security software is to protect the public interest.In the legal regulation of the unfair competition behavior of network traffic hijacking,in addition to the defects of the Internet law of the new law,there are certain difficulties in the evidence collection,mainly due to the dependence,concealment and vulnerability of electronic data.The application of the pre-litigation ban is slightly insufficient.Based on the empirical analysis of the case,there are few cases of network traffic hijacking that apply to the pre-litigation ban,and the trial period is long,which makes the Internet companies lose the market even if they finally win the lawsuit;Damages are a powerful weapon to effectively regulate network traffic hijacking of unfair competition.However,the current calculation of the scope of damages and the absence of punitive damages are also a major problem;in addition,the legislative purpose based on the anti-unfair competition law and The international development trend of competition law,the protection of consumer interests can not be ignored.Based on the argumentation of the above problems,this paper proposes specific suggestions for improvement.For the defects at the legislative level,relevant judicial interpretations can be improved.After all,judicial interpretation can play the role of quasi-legislative;improve the electronic forensic collection system from the collection and examination of electronic data,notarization,etc.;strictly stipulate the applicable conditions and guarantees of the pre-trial injunction The determination of the amount makes the pre-litigation prohibition system perfect;the market share law is calculated for the loss of expected benefits caused by the unfair competition behavior of network traffic hijacking,and the compensation for damage to the commercial reputation is specified in accordance with the practice in Taiwan.Introduce a punitive damages system to deter frequent network traffic hijackings;finally,based on the right to have relief,give consumers groups the right to appeal,and strengthen the protection of the interests of online consumers.As a result,it is possible to effectively regulate the unfair competition behavior of network traffic hijacking,maintain the network competition order,and promote network development and innovation.