The Qualitative Research Of Advertisingshielding Behavior From The Angle Of Thelaw Of The Prc Against Unfair Competition

The shielding software on advertisement on internet browser,which causes disputes of unfair competition,becomes a fatal social problem in this internet-technology-based era.Whether the shield on advertisement is a normal market behavior of technology development or an unfair competition to violate the interest of other operators,it is still vague on legal principle.Recently,in the courts of China,there have been a series of cases on disputes of unfair competition on shielding advertisement,and most of the judgments identified the shield behavior of advertisement as unfair competition.However,the viewpoints are divided,and some scholars present critical opinions on the judgement of shield behavior of advertisement.They have some controversial opinions on whether the relations between developers and operators of browser software and the video website are competitive or not,or whether the business model of ‘free video plus advertisement’should be protected or not.What’s more,whether the shielding behavior of advertisement violates the morality of business and which let it become invalid,or whether the cognizance of the unfair competition should consider the interest of consumer or not.With regard to the cognizance of the shield behavior of advertisement,we should consider the balance of the free competition of market and the protection of business model as guiding ideology,and we should take into account various elements and various interest.The cognizance of whether the competitive relation exists is a primary issue,and we should have a general explanation of the competitive relation in the internet environment.There is no direct but indirect competitive relationship between designer of the browser software and the operator of video website,and this should be adjusted by ‘the Law of Unfair Competition’.The damage is also an indispensable condition to constitute the unfair competition.The damage is obvious to the behavior of shielding advertisement,due to the devastating result from the ‘free plus advertisement’ operation model of the video website.And then,the shielding behavior of advertisement should also be attributed the responsibility subjectively,that is to say,whether the behavior has fault or not,it should be judged by whether the shield software is designed on purpose or not and whether the design violates the public business morality or not.Furthermore,in the situation that the law has no specific regulation on this type of cases,it is crucial to use the method of balancing the interest,not only to consider the interest of theoperator,but also to consider the interest of the consumer and the public.In a word,it is possible but not necessary that the behavior of the shielding advertisement causes unfair competition,so that it should be analyzed according to the specific cases.It is necessary for our country to enforce the legislation on the shield behavior of the advertisement,to put forward to healthier and fairer justice system,and to enhance the discipline of the internet field so as to create a healthy and well-organized environment of market competition in the future.