Inspection And Improvement Of Unfair Competition Law Protection For Enterprise Data

In the context of digital economy,data has become one of the core competencies of enterprises and plays an important role in their operation and management.In the case of unclear data ownership and specific utilization rules,the protection of enterprise data is mainly divided into the rights-constructive path,which advocates the inclusion of data into the traditional rights system or the creation of a new type of property rights on top of data,and the behavioral regulation path,which advocates the protection of data by controlling a series of behaviors related to data.The former advocates the inclusion of data into the traditional rights system or the creation of new property rights on top of data,while the latter advocates the protection of data by controlling a series of behaviors related to data.Since the right-constructive approach faces theoretical and practical difficulties in empowerment and has not yet been confirmed by legislation,the behavior-regulatory approach is still the main choice for protecting enterprise data.Among them,the Anti-Unfair Competition Law plays an important role in the protection of enterprise data by applying general provisions,trade secrets provisions and Internet-specific provisions to determine that the defendant’s data-related competition constitutes unfair competition to achieve the corresponding relief.In recent years,the number of cases arising from data unfair competition among enterprises has been increasing and concentrated in economically developed regions of China,and most of the enterprises involved belong to the Internet industry.The protection mode of the anti-unfair competition law can avoid the dispute over the ownership of enterprise data and take into account the value objectives of data protection and data circulation at the theoretical level,address the lack of legal protection of enterprise data rights and interests at the legislative level,and effectively respond to the needs of resolving enterprise data unfair competition disputes at the practical level.In order to better protect enterprise data effectively through anti-unfair competition law and maintain the order of competition in the data market,lessons can be drawn from the judicial practice in foreign countries.The U.S.judicial precedents have established the rule of misappropriation infringement and prohibited the unauthorized or over-authorized intentional access to another person’s computer to obtain his or her protected computer information based on the Computer Fraud and Abuse Act.Japan revised its Unfair Competition Prevention Law in 2018 to incorporate the corresponding rules of data competition into its competition law system,which is the most significant reference for the improvement of competition law in China.While seeking the experience of extraterritorial practice,judicial practice can reflect the deficiencies of the current competition law on the protection of enterprise data.In the protection of enterprise data under the general provisions,since the current law does not directly clarify the logic and application of the general provisions,judicial practice faces the problem of how to determine the business ethics in the field of data competition and how to evaluate and analyze the justification of the behavior when applying the general provisions.In the protection of enterprise data in the trade secret clause,as the collection of user data in the enterprise data is usually formed on the basis of the collection of personal data in the public domain,whether the data collection meets the secret element in the determination of trade secret is highly controversial.In addition,based on the concealment of data acquisition technology,for enterprises,in trade secret disputes,it is difficult to grasp the third party to obtain data and infringement of trade secret prima facie evidence,and the lack of specific criteria for the prima facie evidence also further aggravates the burden of proof of enterprises.On the protection of enterprise data in the Internet special article,the Internet special article only lists three types of Internet unfair competition,not yet data unfair competition into it.The only way to achieve the protection of enterprise data is through the underwriting clause,which is too brief and lacks operability and enforceability,and is often attached to the general clause in judicial practice,making it difficult to function independently.In order to improve the protection of enterprise data under the anti-unfair competition law,we should start from the following aspects: Firstly,we should uphold the concept of modesty,clarify the application elements of the general provisions,and prevent excessive intervention in the data market.The second is to assist in identifying the business ethics that should be met by a certain competitive act in the data industry with the help of objective criteria,and to prudently grasp the legitimacy of competitive acts by introducing the method of measuring multiple interests.The third is to resolve the controversy of whether and under what conditions the user data in the enterprise data conforms to the element of secrecy.The fourth is to refine the prima facie evidence standard for determining trade secret infringement.The fifth is to draw on the experience of Japan’s law revision in the Internet-specific article to add the constitutive elements of data protection and to build a typology of data competition rules.