| Driven by the digital economy,user data has become the key to competition.Various Internet operators have launched a fierce competition for user data.With the continuous development and progress of crawler and other technical methods,some Internet operators have tried to capture other Internet competitor data to gain competitive advantage,and such capturing behavior will cause damage to both the competition order and the rights of operators and users.Therefore,unfair competition behavior of capturing user data has become a problem worth exploring.From the perspectives of hitchhiking theory,the emphasis on protection of fair competition,and the ability to maximize the protection of operators’ labor results,the Anti-Unfair Competition Law has a theoretical basis for regulating the behavior of capturing user data.However,from the perspective of legislation and judicial practice,the regulation of the Anti-Unfair Competition Law on the capturing of user data is mainly from the perspective of general terms.In judicial practice,rules are also actively created to solve similar problems,but a clear identification framework doesn’t yet exist.In fact,the improper determination of the subject,the object,the behavior of capturing user data,and the consequences of damage are the four requirements for determining the unfair competition behavior of capturing user data.Combining the current legislative level and the current status of judicial practice,as far as the legal regulatory dilemma of capturing unfair competition of user data is concerned,it is mainly reflected in the flaws of the standard system and the imperfect stop-loss compensation system.At the level of the legal system,enumerated legislation is absent for unfair competition behavior of capturing user data,and the application of general terms does not have refinement of business ethics;On the relief system of stop loss and compensation,the lacking of stop loss relief system and incomplete damage compensation system in the Anti-Unfair competition law make it easy for the arrested party to have an enlarged loss and it is difficult to calculate the loss.Even if it wins the lawsuit,it loses its market advantage.Aiming at the above-mentioned problems in regulating the behavior of capturing user data,while applying the general terms,the concept and constituent elements of unfair competition in the capture of user data can be clearly clarified by judicial interpretation in order to Remedy the limitations of the application of the general terms;In particular,when further Determining the business ethics,in addition to comprehensive other elements of the improper determination,the benefits should be measured in conjunction with industry practices,industry practices and technical factors.In addition,a dual stop loss mechanism of defensive relief and litigation injunction is established.In the design of the compensation system,referring to Japan’s useful experience,design specific and feasible reference factors and standards. |
