Regulations And Restrictions Of Anti-unfair Competition Law Against Network Hijacking Behavior

Since the promulgation of the Anti-Unfair Competition Law,China had experienced the age of high speed development of internet.The competition situation between internet operators had undertaken great changes in recent years,and the traditional legal provisions are unable to regulate the variable situation.In this regard,the Amendment to the Anti-Unfair Competition Law was passed in 2017,which had provided that the model of Inserting Link & Forcing a URL redirection shall be regarded as network traffic hijacking behavior.Chapter One: This chapter focuses on the recognition of network traffic hijacking behavior in respect of object factor,subjective factor,objective factor and consequent damage.Firstly,the subject that commits network traffic hijacking behavior shall be the internet operators that have competitive relationships;secondly,this chapter analyzes the "malicious" in the Internet,and the recognition of "malicious" should be judged in combination with concrete behavior;thirdly,this chapter analyzes the consequent damage caused by network hijacking behavior;Finally,this chapter analyzes the consistence elements of network traffic hijacking unfair competition behaviors,and points out that such behavior shall first have drainage behavior,and then be improper.Firstly,it analyzes the influence on thejudgment of legitimacy regarding such two behaviors,that is,not all the traffic-guided behaviors constitute unfair competition,and meanwhile,it should adopt a cautious attitude to the supplementary protection outside the intellectual property law.Secondly,the judgment on whether the network traffic-guided behavior is improper or not shall be based on comprehensive considerations,such as if the Internet operators pay a huge cost to obtain traffic,if the business model has commercial value,if the technical contact between the two is appropriate,and if the drainage behavior is of positive significance to the market.Finally,the proper boundaries of some privileges of security software are discussed.Chapter Two: This chapter focuses the predicament of legal regulation of network traffic hijacking unfair competition behavior on the ground of the unfair competition cases caused by network traffic hijacking.Based on current judicial precedents,network traffic hijacking is not fully listed in Article 12 of the Anti-Unfair Competition Law.Therefore,it is especially necessary to classify the network traffic hijacking unfair competition behaviors to define network traffic hijacking behavior.The author analyzes the criteria for classifying network traffic hijacking and divides the common network traffic hijacking behaviors in daily life into two categories based on whether they infringe the interests of consumers or other competitors.Interceptive network traffic hijacking prevents customers from free decisions;inductive network traffic hijacking mainly infringes the interests of competitors.Chapter Three: This chapter has provided suggestions regarding the legal regulation and restrictions on network traffic hijacking unfair competition.First of all,this paper believes that the legal regulations and restrictions on the unfair competition behavior of network traffic hijacking can be supplemented by "general provisions" while applying "Internet articles",and different regulation methods can be adopted for intercepting network traffic hijacking and inducing traffic hijacking.Secondly,this article suggests that pre-litigation injunction system shall be enforces in judicial practices,and at the same time,we should not give loose legal protection to "network traffic" that cannot be regarded as intellectual achievements,and we shall try to solve the problems by making solution measures and enforcement suggestions fromdifferent aspects such as legislation,judicial practice,and administrative law enforcement level.