Research On Legal Regulation Of Data Scraping Behavior

Data scraping is a new type of business behavior that is widely used in search engines,public opinion analysis and other fields in the era of big data.Through data scraping,the free flow of data can be effectively realized,the economic value of data can be fully exploited,and the development and innovation of the data industry can be promoted.In the era of big data,data has become an important factor of production that keeps pace with land,labor,and knowledge.Whether or not to master data resources has become the key for enterprises and even countries to compete for core competitiveness.Although data scraping has brought positive effects such as efficient processing of data,innovation of data products,and improvement of social and economic benefits for the digital economy,data scraping as an important means of acquiring data resources has also led to a series of disputes in the process of competing for data resources,bringing new risks and challenges to the current legal system and judicial regulation.Based on the technical characteristics of data scraping behavior,this paper summarizes the main problems of the current legal regulation by summarizing and sorting out the current legal regulation of data scraping behavior in China.Investigate and summarize the regulation experience of data scraping behavior in the United States and its enlightenment to China.In view of the main problems existing in the current legal regulation of data scraping behavior in China,corresponding suggestions for improvement are put forward.The paper is divided into the following four parts.The first part explains the concept of data scraping behavior from the perspective of operating mechanism.Data scraping is essentially a system to achieve efficient downloading,which has the characteristics of unilateralism,scale,anonymity and value.According to different classification standards,the objects of data scraping behavior include public data and non-public data,enterprise data,government data and personal data.The main technical means of data scraping is web crawler.At present,it has been widely used in search engines,public opinion analysis and other fields,and has become an important means to compete for data resources.The second part analyzes and interprets the current legal regulation of data scraping behavior in detail from the perspectives of public law and private law,and further summarizes the existing problems of the current legal regulation of data scraping behavior through the investigation of the current situation.The legal regulation of data scraping behavior involves the competing application of multiple department laws.The data scraping behavior identified as illegal may bear civil tort liability,administrative liability and even criminal liability.However,at the legislative and judicial levels,there are still many problems in the current legal regulation of data scraping behavior.The difficulty in defining data ownership leads to the shortage of the private law regulation mode of protecting data rights and interests through prior empowerment.The expansion of the scope of criminal law and the lack of illegality judgment standards make it difficult to define the legitimacy boundary of data scraping behavior,and it is difficult to effectively coordinate between departmental laws.The third part sorts out and analyzes the regulation experience of data scraping behavior in the United States,and further summarizes the enlightenment and reference significance of experience and concepts of the United States’ judicial regulation of data scraping behavior to China combined with relevant cases.First of all,the situational judicial regulation mode in the United States,with the contextual integrity theory as the core,has important reference significance for the governance of data scraping behavior in China.Secondly,the judicial regulation mode that the United States attaches importance to the balance between the protection of data rights and interests and the rational use of data has important enlightenment significance to the current situation of legal regulation that China has difficulties in data rights and insufficient protection mode of data private interests.Finally,the regulatory concept of the U.S.judicial practice which emphasizes maintaining the principle of technology neutrality,and encourages data reuse and data innovation has important reference value for the current situation of excessive protection of data subjects and their data rights and interests in China.The fourth part,on the basis of the previous thesis,reasonably draws lessons from the beneficial experience abroad,further analyzes and proposes the corresponding improvement path in view of the problems existing in the current legal regulation of data scraping behavior.The essence of data scraping disputes is the conflict of interest between the parties.How to resolve the conflict of interest is the key to reasonably solve the data scraping disputes and balance the protection of data rights and interests and the rational use of data.We should introduce the mechanism of balancing of interest,clarify the method of balancing of interest,and resolve the interest conflict of data scraping behavior by building a binary balancing of interest of data acquisition and data use.Secondly,we should improve the legitimacy criteria of data scraping behavior,including the crime criteria of data scraping behavior and the illegality criteria of data scraping behavior.Finally,we should build a cooperative governance of data scraping behavior,including coordinating the applicable relationship between departmental laws and the applicable relationship between the internal articles of department laws.