Judgment Of Unfair Competition In Data Crawling

The Internet penetration has made the value of data much more competitive in the digital economy and has gradually become competitiveness of enterprises,especially as the policy environment in the field of big data is gradually improved in2019,technological innovation continues to advance,and industrial applications continue In the process of deepening,we can see the value of data and the important role it plays.This is also one of the reasons why competition for data resources on the Internet,such as traffic and users,has increased.Among them,unfair competition behavior of data crawling has gradually become an important part.Summarizing the judicial cases in practice,this thesis reveals the current dilemma in the legal recognition of this behavior from the application of laws and judicial judgments,and provides targeted opinions and reflections.At present from judicial practice,the standards for determining whether data crawling constitutes unfair competition are not uniform and are too one-sided and rigid.They are usually reflected in the determination of such behaviors only through formal judgments,and lack of reference to industry background and approval.The evaluation of multiple interest relationships to make substantive judgments makes the determination of this type of behavior in our judicial practice full of uncertainty.The main reasons for this: firstly,the nature of this type of behavior is neutral,the legislation fails to regard it as a typical unfair competition behavior and clearly adopts corresponding legal regulations on it,and it can only be passed principle clauses are recognized,and the disadvantage of principle clauses is that they give judges too much discretion.Under this circumstance,higher requirements are imposed on judges exercising discretionary powers,especially in the development of emerging industries,the judgment of unfair competition behavior in this kind of industry may affect the development trend of the entire industry.On the other hand,because the Internet industry is growing,there are many uncertainties.In this field,such as how to define the connotation of business ethics,how to define the relationship between competitors and competition,and how to facilitating data flow to ensure the sound progress of the industry,which requires balancing the relationship between legal provision and promoting the flexible development of the industry.On the structure,this thesis is divided into three parts.The first chapter is the dilemma of data crawling unfair competition behavior determination,which includes first defining the data crawling behavior,clarifying the important position of data,and briefly explaining the application of data crawling.The scenario determines the nature of its own neutrality,thus laying the foundation for the later explanation of the reasons why it is hard for the actual legislation to directly place it in the typical unfair competition behavior.Reveal the limitations of data scraping behavior in the identification process from the legislative and judicial perspectives,including the application of Articles 2 and 12,the one-sided identification of business ethics in judicial practice,the "exclusiveness" of legitimate rights and interests,the exaggeration of competing interests.The second chapter mainly combines the limitations of the first chapter to propose how to properly identify the unfair competition behavior of data crawling,including analysis and explanation of the competition subject,competition relationship,business ethics,and competitive interests.The third chapter proposes a reflection on the identification of this type of competition behavior from a macro perspective.Starting from the original intent and characteristics of the competition law,it comprehensively considers the efficiency of the market economy,consumer interests,and social public interests to avoid obstructing the social economy due to data monopoly.