Study On The Identification Of Unfair Competition In Video Advertisement Blocking Behavior

With the development of Internet technology,the Internet market economy has become increasingly prosperous,and many new competitive behaviors unique to the Internet field have emerged,including video advertising shielding.In recent years,cases of unfair competition disputes caused by video advertising shielding have occurred frequently.However,the general provisions of the current Anti Unfair Competition Law and the Internet specific articles on this behavior are not very clear,which also led to the fact that when judges adjudicate such cases in judicial practice,the results of the first and second trials are completely opposite.It is found from the analysis that,nowadays,when judging such cases,almost all courts in China hold that the sued video advertisement shielding behavior belongs to unfair competition behavior,and have chosen to safeguard the plaintiffs business model and economic interests,which has also caused a huge controversy in the academic circle.The courts in Germany and the United States have shown diametrically opposite results to those in China,that is,they have recognized the legitimacy of video advertising shielding.Although China’s national conditions are different from those of Germany and the United States,and the pursuit of value is also different,the results of adjudication are so different that it has to arouse the reflection of our courts.This paper is divided into six parts to study the problem.The first part briefly introduces the background and significance of this topic,combs and summarizes the research status at home and abroad on this topic,summarizes the main content of this article,and points out the innovation of this article;The second part mainly introduces the relevant concepts.First,it defines what video advertising is and what video advertising shielding behavior is,and lists the specific ways of video advertising shielding behavior.It explains the above issues to promote the research of this topic;The third part introduces the typical cases of video advertising shielding in China’s judicial practice.This paper selects two representative cases-Youku v.Cheetah and Tencent v.World Xinghui,and summarizes the focus of the two cases,mainly including whether there is a competitive relationship between the two sides,and whether the business model of "advertising+free video" should be absolutely protected by law,Whether the sued video advertisement shielding acts constitute unfair competition;The fourth part introduces the current video advertising shielding behavior in China,mainly through the competition law regulation,and points out the shortcomings of the competition law regulation.For video advertisement shielding dispute cases,the judgment basis in China is mostly Article 2 General Clause and Article 12 Internet Special Clause of the Anti Unfair Competition Law.However,due to the high generality and abstractness of the general clauses,the judges have the problem of arbitrary reasoning when adjudicating such cases.In addition,the types of network unfair competition behaviors specifically listed in the Internet Special Clause are limited,and the provisions of the cover clauses are not very clear,As a result,judges seldom apply the Internet Clause;The fifth part introduces the relevant extraterritorial systems and practical experience,and draws inspiration for China.The United States,as a country with an early origin of the Internet,has long had video advertising shielding disputes.Germany,like China,has seen more such cases in recent years.Therefore,the relevant systems and practical experience of the United States and Germany are selected for research.When adjudicating such cases,the courts in Germany and the United States have made decisions that are diametrically opposite to those in China.They believe that video advertising shielding docs not constitute unfair competition,and they both mentioned respecting consumers’ right to independent choice and safeguarding consumers’ interests in their judgment reasoning.The defendant’s behavior did not cause fundamental damage to the plaintiffs behavior,and the court should carefully intervene in free market competition.This article attempts to study the relevant systems and practical experience outside the region to see whether we can draw inspiration to our country;The sixth part puts forward suggestions to improve the identification of unfair competition in video advertising shielding behavior in China,which is mainly divided into three aspects.First,it should be clear what factors should be considered when identifying the nature of video advertising shielding behavior,that is,it should explain the application of dynamic competition concept,apply the principle of interest measurement,and introduce the principle of proportionality as an analysis tool to make the judgment standard objective;Secondly,it is necessary to appropriately limit the application of reliance on general clauses;Finally,we should enhance the applicability of Internet regulations.The market competition is guided by the "invisible hand",that is,the market’s own mechanism,which presents a dynamic process and forms a coordinated and stable market competition order.When determining the nature of new online competition behaviors,including video advertising shielding,the judiciary should maintain modesty,take a cautious attitude to intervene in market economic activities,maximize respect for the market competition mechanism,comprehensively consider various factors,and encourage technological innovation,Absolutely protect the business model of operators without legal means.