Identification Of Unfair Competition Behavior In Traffic Hijacking

Traffic hijacking is a new type of unfair competition behavior that only exists in the Internet.It is different from the traditional unfair competition behavior in behavior mode,manifestation and impact on consumers’ interests.Paragraph 2(1)of Article 12 of China’s Anti Unfair Competition Law stipulates two types of traffic hijacking: "insert link" and "force target jump".However,this provision is only a summary of previous judicial experience and cannot cover all types of traffic hijacking.There is still great uncertainty in determining traffic hijacking according to this provision in judicial practice.Bssed on the traffic hijacking cases,this paper analyzes how to identify traffic hijacking in judicial practice.Firstly,it analyzes the common judgment ideas of "rights and interests protection" and "behavior legitimacy analysis" in traffic hijacking cases.After comparing these two kinds of judgment ideas,it is concluded that the judgment idea of "behavior legitimacy analysis" should be used to identify traffic hijacking.Secondly,using the judgment idea of "behavior legitimacy analysis",it is found that there are many factors affecting the legitimacy of the sued behavior.After analyzing the relevant cases,it is pointed out that the interests of operators,consumers,market competition order and technological innovation are the key factors to be considered in the trial,and these factors are analyzed in detail.Finally,in view of the problems existing in the identification of traffic hijacking behavior,such as the fuzzy identification standard of competitive relationship,the dispute of traffic ownership and the inconsistent judgment standard of damage degree of operators,it is suggested that the positioning and identification standard of competitive relationship should be clarified,the identification basis of traffic ownership should be established,and the behavior causing substantive damage should be clarified.