Research On The Applicability Of The Principle Of Essential Facilities To Data Access Denial

In recent years,data has gradually developed into the core production resource in the era of digital economy.In practice,data monopoly represented by data refusal to access occurs frequently,which destroys the fair and free market competition order and leads to the effect of restricting and excluding competition.In the face of the complex effects of data denial on market competition,whether the principle of essential facilities can be applied in data denial and how to apply it has aroused the concern of theorists.The first part directly puts forward the legal regulation dilemma of data refusal to access.First,due to the network effect and locking effect,the extension of data monopoly power and the development of quasi-natural monopoly attribute of data market,data refusal to access chaos is in urgent need of regulation.Second,in the era of digital economy,the public goods attribute of data is becoming more and more prominent,but there is a contradiction with private property protection in the process of data sharing.Third,the application of essential facilities will face conflicts of interest in many aspects,such as the infringement of consumers’ privacy and personal information rights,the destruction of operators’ private property rights and free trading rights,and the suppression of market investment and enterprise innovation vitality.The second part responds to the discussion of whether the essential facilities can be applied in the field of data denial access by expounding the necessity of application.One is that the public attribute of data is becoming more and more prominent,and the advantage data is irreplaceable in the era of digital economy.Only by promoting the flow can we give full play to the value of data.The second is that the essential facilities can effectively regulate the data refusal access behavior,which is consistent with the development of the digital market,and is a powerful means to regulate the data denial access behavior.On the basis of the necessity of application,the third part puts forward that there are different judicial application practices and viewpoints in applying the principle of essential facilities to regulate data denial of access,and the supporters represented by the European Union think that it can be applied according to the case.The opposition represented by the United States thinks that efficiency is priority,but the relevant laws of our country have been recognized,but the rules are more general,and the judicial practice cases are insufficient.Although the controversy is hot in theory,it is not clear yet.The fourth part focuses on the analysis of the applicable standards on the basis of absorbing the extra-territorial practice of learning.As the application of the principle of essential facilities may face multiple conflicts of interest in theory,it is necessary to take personal data protection as the basis,competition order maintenance as the purpose,and case application as the overall idea.And in the dispute over the core issues,it is necessary to solve the definition standard and open object scope of the essential facilities for data composition.The fifth part focuses on solving two applicable core controversial issues-the definition standard of data constituting essential facilities and the scope of open objects,and responds to other problems in the application of essential facilities,and puts forward rules and suggestions,which is the foothold of this paper.As for the criteria for defining the essential facilities for the composition of data,after analyzing the five elements one by one,it is concluded that it only needs to have all the competition in the downstream market and may eliminate all competition in the downstream market;facilities are shareable;there are three elements for refusing to open data without justifiable reasons.As for the competitive relationship,compared with the direct competitors in the same industry,it should be applied in the competitive relationship between upstream and downstream enterprises,and the direct competitive relationship in the downstream market should be taken as the main judgment criterion.In addition,the application of the essential facilities follows the identification path of rejecting the transaction,the pricing standard based on voluntary negotiation,the supervision system based on ex post supervision and the withdrawal mechanism,which makes it more operable in practice.