Competition Law Path And Optimization Of Commercial Data Protection In The Context Of Big Data

Data as a new production factor is the basis of digitization,networking and intelligence,and has been rapidly integrated into various aspects of social production,distribution,circulation,consumption and social service management,etc.As a large data country,China should activate the potential of data elements to enhance economic development.With the iterative update of Internet technology,commercial data has become a core resource that can drive the economic growth of enterprises and continuously enhance their independent innovation and development capability,and can even become an important element to promote the change of traditional industrial model.In the era of big data,the importance of commercial data exchange and protection has become more and more prominent,and the discussion on commercial data protection mode has intensified in the academic circles,but a unified view has not been reached yet,and there is a lack of clear legal provisions in the legislation,and the importance and urgency of commercial data protection has not been clearly reflected in the legal provisions,which is not conducive to the safe and sustainable development of China’s digital economy in the long run.Compared with the construction of new data rights,it is more practical and feasible to seek effective competition law protection for commercial data under the existing legal framework.Commercial data is an emerging thing,and its connotation and extension are constantly developing with the update of Internet technology.The relationship between data and commercial data can be argued from the superior concept of commercial data,and then from the existing local legislative regulations,the relationship between commercial data and public data can be argued,and the concept and characteristics of commercial data can be summarized.The discussion on the protection path of commercial data in the context of big data is mainly divided into two kinds,the protection path of commercial data empowerment and the protection path of commercial data competition law.The protection path of commercial data empowerment mainly includes the protection path of property rights,the protection path of intellectual property rights and the protection path of intangible property rights,and all three protection paths are inappropriate in the practice of commercial data protection and cannot protect commercial data completely and effectively.The protection path of commercial data competition law is mainly embodied in the general provisions of the Anti-Unfair Competition Law,trade secret provisions and Internet-specific articles,which become the primary choice of judicial organs in solving the current commercial data unfair dispute cases and can provide a more flexible choice for the protection of commercial data nowadays,and the application of the Anti-Unfair Competition Law to protect commercial data is supported by a large number of judicial practices,and judicial The application of the Anti-Unfair Competition Law to protect commercial data is supported by a large number of judicial practices,and most of the judicial practices choose general provisions to provide protection for commercial data.The protection of commercial data by competition law has great advantages compared with the protection by empowerment.The protection of commercial data by competition law facilitates the effective circulation and sharing of commercial data,maximizes the value of commercial data,and helps maintain the stability of the competitive market order.Although the adoption of competition law to protect commercial data in the context of big data has great advantages,there are still some problems,mainly including the dilemma of the application of the Anti-Unfair Competition Law and the controversy of the determination of non-typical data unfair competition.The former includes the subjective standard of using "business ethics" in general provisions,the standard of "secrecy" in trade secret provisions needs to be updated,and the standard of "damage and nuisance" in Internet-specific provisions.The latter mainly includes disputes over the types of data obtained and used by enterprises,the types of personal data generated by platforms,and the types of non-personal data generated by machines.In optimizing the protection path of China’s commercial data competition law,we can appropriately draw on the experience of overseas commercial data protection,and the consideration of public interest in the U.S.Linking case can provide another way of considering the interests of judges when judging the corresponding commercial data cases in China.The legislative inspiration of the new "limited provision of data" article in the Japanese Competition Law has certain significance for the construction of a special article on commercial data in the Anti-Unfair Competition Law of China.The EU Data Act introduces the FRAND principle for the circulation of business-to-business data into China’s judicial practice to generate rules for the circulation of non-personal data.In optimizing the protection path of commercial data competition law,the objective judgment standard can be used as the boundary for judging whether the data competition behavior complies with the business ethics,and the justification of data competition behavior can be determined by the principle of proportionality,and the judicial adjudication mode can be changed from the infringement protection mode to the behavior regulation mode to limit the excessive application of the general provisions,and the determination of secrecy in the composition elements of trade secrets should be updated in the context of big data.In the context of big data,we should update the criteria for determining the secrecy in the composition elements of trade secrets and clarify the criteria for determining "obstruction and destruction" in the "Internet special article".The legal basis for similar commercial data disputes is provided through the typology of commercial data-specific articles,including the types of user data collected and disclosed by webpage operators,the types of personal data generated by platforms,the types of non-personal data generated by robots,and the underwriting clauses and exceptions of commercial data.