Research On Anti-Unfair Competition Law Regulation Of Data Scraping

Data scraping is an important way to obtain data resources,which brings challenges to the balance between data competition and data protection.Through the statistical analysis of the judgment documents of data capture unfair competition cases,the author found that due to the lack of legislation that directly regulates data capture behavior,the court’s judgments have different judgments for the same case.There is also controversy among different courts as to whether to treat competitive relationships as a prerequisite for the application of the AntiUnfair Competition Law,and some courts have improperly cited general provisions without following the essential rules of the law.On November 22,2022,the State Administration for Market Regulation issued a draft revision of the Anti-Unfair Competition Law,which aims to regulate Data scraping through Article 18.However,there are still some issues to be addressed,such as the limitation of the scope of data,with public data being treated as an exception,and the lack of uniform standards for determining damages,with differences in the application of infringement standards in the provisions.To enable the Anti-Unfair Competition Law to return to its essence as a regulatory law,and to protect data competition,it is suggested that competitive behavior should be used as the starting point for the application of the Anti-Unfair Competition Law.Competitive behavior makes the subject of the competitive relationship specific,and the competitive relationship can be used to determine the status of the subject.Secondly,the draft revision should follow the principles of minimal harm and balance of interests,and regulate Data scraping.The scope of data should be expanded to include commercial data processed by operators,and a clear distinction should be made between public and non-public data,with different levels of protection provided.In terms of behavior patterns,specific behaviors should include unfair acquisition,use,and disclosure in three stages,and the determination of behaviors should follow the sequence of acquisition,use,and disclosure.The standard for damages should be uniformly applicable and based on substantive replacement,and the existence of real harm should be required.Finally,in the context of new developments in the data industry,legislation needs to be combined with both soft and hard measures,and other laws and regulations related to data development and security,such as the Data Security Law,should be taken into account to coordinate the relationship between data competition and data protection,strengthen the management of Data scraping through industry norms,and establish a coordinated and orderly cooperation and regulatory system.