Research On The Problem Of Unfair Competition Identification In Advertising Filtering

According to the judgments of Chinese courts,advertising filtering is generally considered as unfair competition,which shows that the precedents in this field are highly consistent and concordant.There are usually three steps for the court to make a decision on a relating case: the first step is to analyze the scope of the legal protection for a “free +advertising” business model;the second step is to investigate the subjective intention of the defendant and the claimant’s damage caused by the defendant’s activities;the final step is to confirm that advertising filtering is a type of unfair competition based on the two steps mentioned above.However,unlike China’s focus on static legal interest protection,which basically focus on protecting the interest of stabilization,courts in Germany and the United States are more likely to leave the issues of technology and competition to the market.If the court must intervene in such cases,advertising filtering will be defined as unfair competition only after all interests involved have been considered comprehensively.The basic idea of this article is to summarize the ideas of rights-protected adjudication and the application of legal rules including "moral standards" and "economic standards" by sorting out dozens of typical domestic cases,and typical cases in the United States and Germany.To compare the refereeing philosophy,refereeing ideas,and specific interest measurement,and to reveal the flaws of Chinese legal practice in the current stage.The final conclusion of this essay will be suggestions on how to justify the activities of advertising filtering and how to regulate these activities within the scope of protecting competition.The main body of this essay can be divided into four parts:The first part defines the activity of advertising filtering in order to clarify the object matter of this essay.Based on the external features of advertising filtering,the definition will be fully considered from four aspects: the object matter,the technicality of the action,the mode of the action,and the interests involved,which can illustrate the legal distinctions between advertising filtering and other internet technologies.Only with a clear definition,can the following parts further demonstrate the justification of advertising filtering.Then logically introduce the current theoretical and practical disputes about the legitimacy of this behavior,to further focus on the legitimacy of this article’s research objecta—advertising filtering behavior.The arguments of the second part based on the legal practices in different jurisdictions,which indicates the current approaches in the legal field related to the unfair competition determination of advertising filtering behavior.First of all,based on the existing jurisprudence and administrative regulations,combing the domestic judicial and administrative identification of advertising filtering behaviors,abstracting the domestic judgment ideas and the application of legal rules from the cases;then focusing on the relevant typical extraterritorial jurisprudence.Summarize the legal support behind the "different judgments in the same case" outside the territory,and explain the good social effects produced by extraterritorial judicial rulings with examples.Finally,the differences in the determination of relevant behaviors at home and abroad from the three perspectives of ruling ideas,ruling ideas,and specific interests perform comparison studies.The third part focuses on the justification of advertising filtering activities in China from five aspects: the method of rights protection,the protection of business models,the principle of “no intervention without public interest”,the standards of business ethics,and the balance of specific interests.It is pointed out that the domestic determination ideas and basis are still based on the protection of static legal benefits of operators.The logical proof of the flaws is obvious.Not only does it ignore the neutrality of the damage in competition,but its benefits are too meager to measure.Consider the legitimacy of related behaviors from the perspectives of competition mechanism,safeguarding the collective interests of consumers and the general interests of the competitive market,failing to take into account the interests of free competition among operators,the interests of free decision-making by consumers,and the social and public interests of undistorted competition range.The last part emphasizes that the solution to solve the current problem is to find a new approach to clarify the connection between advertising filtering and unfair competition.That is,under the guidance of the "protection of competition" paradigm,based on the actual competitive relationship,the comprehensive interests of the filtering behavior including the interests of operators,consumers,and social public interests are measured.The conclusion that the behavior is justified is inadequate,that public powers should not interfere lightly with market competition,and gives advice on the application of legal regulations to abandon the principle of "non-public interest non-interference" and apply general provisions with caution.