Research On Legal Regulation Of User Data Acquisition Behavior In China

With the continuous development of Internet technology and big data technology,the value of data is becoming more and more important,and human beings are beginning to enter the era of data economy.In the era of data economy,various data have shown high commercial value,among which user data is the leader.At the same time,various business models around data are emerging,and the Open API model has become an important representative of the data economy business model.As a result,there are a series of legal disputes based on user data and the Open API model in China.Although the "General Principles of Civil Law of the People's Republic of China" has incorporated "personal information" into the chapter "Civil Rights",its legal positioning and protection methods are far from clear.The laws related to user data acquisition behavior are still blank.Therefore,at present,China's legal regulation of this issue faces many difficulties.This article starts from the "Sina Weibo v.Maimai" unfair competition case,focusing on the specific scope of user data.This article consists of four parts.The first part is to point out questions.This paper introduces the background of the current legal regulation of user data acquisition behavior in China,and summarizes the current status of regulation.More and more developed Internet technologies as a tool and platform provide convenience for platform operators toaccess users,expand users and understand users.User data has corresponding value to operators,and obtaining user data becomes the core of business decision-making.At present,Open API has become a universal application mode for the open interface and data asset realization of the network information industry,and is the key to the open reconstruction of the enterprise digital platform.At present,there are not many disputes arising from user data acquisition behaviors in China,but the two sides of the disputes are often the most influential platforms in China's respective industries,such as Sina Weibo v.Maimai in 2015,Sina Weibo and Today's Headline data dispute in2017,SF and Guoguo data dispute in 2017.The author summarizes the problems arising from the judicial practice and the current situation of disputes introduced in this paper,and summarizes the three legal difficulties faced by China.First,user data ownership is unclear.User data itself is not a strict legal statement.In the Sina v.Maimai case,the court did not treat the user data involved in the case differently.Second,over-reliance on the principled provisions of the Anti-Unfair Competition Law.In essence,the second principle clause of the Anti-Unfair Competition Law is often used to prove that the accused conduct violates business ethics and is unjustified.What kind of behavior is in line with business ethics standards,we often can't agree on this issue.Third,the exclusive terms of user data acquisition behavior are missing.Because the current laws and regulations on data and data acquisition behavior are still blank,the court still needs to judge the case by applying the principled clause and the discretion of the judge.The second part is to solve the problem of user data ownership.This paper first clearly points out that information is the essence of data,and data is the carrier of information.Based on this,user data is classified according to different bearer information.User data is specifically divided into personal information data and general information data.Then discuss the legal attributes of the data and its ownership.This paper considers user data to be an object of interest.For the ownership of user data,this paper also makes different ownership arrangements based on the two types of classification.Combined with the current legislative experience of the European Union,the "data portability" in the General Data Protection Regulationshas a strong reference for China.This paper argues that for personal information data,its personality characteristics determine that personal data ownership arrangements should be based on personal control.For ordinary user data,whether the platform has corresponding rights to the relevant data collected and utilized by the platform depends mainly on whether the data is processed by “de-identification”.For de-identified data sets,the platform has an interest in the data.The third part is to solve the problem of over-reliance on the principle clause of the Anti-Unfair Competition Law.By introducing the method of interest consideration,this paper effectively avoids the limitations of the "business ethics" standard in identifying unfair competition behavior.At the same time,this paper introduces the court's consideration of the public interest in the US hiQ v.LinkedIn case,and further compares the differences in the referee's thinking between the two cases in China and the United States,and provides reference for China's use of interest consideration methods.Finally,the author applies the method of interest consideration to the justification of the user's personal data acquisition behavior in Sina Weibo v.Maimai,and finally concludes that this behavior is not an unfair competition behavior.The fourth part is to solve the problem of the exclusive clause of the lack of user data acquisition behavior in China.This chapter introduces Japan's recent legislation on data as a modification of the provisions of the competition law.The focus is on reducing the controversy over the application of laws through the discipline of legal regulation of data competition.This also has reference significance for China's future legislation.At the same time,the author discusses the similarity between user data and trade secrets,and draws a legislative model on the exclusive terms of user data that can refer to the trade secrets in China's Anti-Unfair Competition Law.Finally,the author puts forward specific suggestions for the legislation of the exclusive terms of user data.The first is to clarify the scope of data protected by law.The author proposes three attributes that user data should have from the perspective of competition law,namely,commercial value,protection and scale.The second is to enumerate the unfair competition behavior of user data,mainly to circumvent or deliberately undermine technical measures,unauthorized or beyond the scope ofauthorization to obtain,use,and disclose user data.