Research On The Anti-Unfair Competition Laws And Regulations Of Data Scraping

Against the backdrop of the continuous development of the internet industry,data has become the main resource for market entities to gain competitive advantages and economic benefits.With the competition of internet operators for the data market,improper data grabbing behavior is common in practice.How to regulate the anti-unfair competition law more effectively has become an urgent issue.In November 2022,the State Administration of Market Supervision publicly solicited opinions on the Law of the People’s Republic of China on Anti-unfair competition(Revised Draft for Comments).Article 18 formally introduces the concept of "data capture" into the anti-unfair competition law,which indicates that legislators prefer to regulate data capture in a specific article rather than in an exhaustive manner.However,there are still ambiguous areas in the determination of data capture behavior in China’s judicial practice.The anti-unfair competition law includes such behavior into the scope of regulation,which can clarify the ambiguity of the applicable law in specific cases and help maintain the competitive order in the Internet market.The theoretical framework of the article starts from the theory of unfair competition behavior.When the nature of data capture behavior is defined in the legal field,it is different from the private law field that identifies it as an act of tort,but identifies it as an act of unfair competition.At present,there are no specific legal provisions on data crawling behavior in China.There are three main ways to regulate this behavior in judicial practice,namely,to protect data as a right object in the field of civil law;Include data in the field of intellectual property law protection and apply the general provisions of the anti-unfair competition law.As far as the legislative basis and judicial practice are concerned,the practice of incorporating data into the civil law or the intellectual property law cannot cover all the contents of data rights protection.In view of the exponential growth of Internet data and the complexity of the competitive environment,this paper discusses the necessity and feasibility of the anti-unfair competition law to regulate data capture through case analysis.The anti-unfair competition law,with its flexible legislative model,makes up for the lag of the law and its limited application.It not only has a necessary supplementary function,but also can coordinate with the legal system of other departments.At the same time,it plays a vital role in ensuring fair competition,promoting economic development,balancing the interests of Internet operators,consumers and the public.However,the anti-unfair competition law has some defects in regulating unfair competition in practice.The competition behavior in the Internet market is not obvious when the existing anti-unfair competition law of China was enacted,so the law did not provide for the detailed improvement of unfair competition behavior in the Internet environment.Although the "Internet Clause" has been introduced into the newly revised anti-unfair competition law,China has not yet built a systematic and perfect data capture behavior standard system.The coordination and interaction with other sectoral laws are insufficient,and the Internet Clause has not been refined.Instead,it only lists some behaviors and provides general provisions in terms of bottom-up clauses without detailed description,which leads to the problem of large discretion space,The regulatory effect is not ideal;In addition,general clauses lack specific standards for recognition and are usually based solely on the principles of good faith or business ethics,which are inherently difficult to recognize.If judges are unable to reasonably apply the general provisions of the general provisions in specific cases,it may have an impact on data circulation and sharing,thereby affecting the long-term development of the internet industry.At the same time,the "anti-unfair competition law" has some problems in its application,such as the lack of stop loss system and the imperfect system of liability for damages,and the economic interests of the captured party cannot be guaranteed.In addition,the administrative department lacks supportive supervision,resulting in problems such as confusion of supervision subjects and duplication of supervision fields,which leads to inefficient supervision of unfair competition in the Internet market;In terms of technology,the code prevention mechanism is even more blank,and there are significant deficiencies in the construction of technical supervision,resulting in unsatisfactory regulatory effects for data capture.In the face of the above issues,the article first establishes the rule of interest measurement and judgment based on foreign experience.On this basis,further improve the Internet special terms and clarify the scope of application of Internet special terms;Restrict the application conditions of general conditions and adjust the application relationship between departmental laws.Secondly,in judicial practice,the approach to determining competitive relationships should be changed and the application of business ethics standards adjusted.In addition,introducing a pre litigation injunction system to avoid the expansion of economic losses for the injured party;Clarify the reference factors for damage compensation and establish a sound system of liability for damage compensation.Finally,it is necessary to strengthen the supporting administrative supervision system,clearly define the authority and functional division of the market supervision department and the industry and information technology department,and reasonably allocate law enforcement power;Innovate regulatory measures for data capture and fully utilize the advantages of the specialization of the National Internet Information Office.At the same time,pre control the code of data capture,and construct a technical prevention mechanism for unfair competition of data capture.