法学院知识库

       With the deep integration and innovative digital data technology, the penetration rate of the Internet continues to rise, which has promoted the vigorous growth of Internet related industries. The platform economy has gradually become a new driving force for economic development. Data, as the underlying support, is increasingly becoming a key factor for Internet platform enterprises to grasp market competitive advantages. In the process of fierce competition among platform enterprises around data, new types of unfair competition behaviors such as data capture have emerged. However, due to the fact that the current legal system has not yet been followed up in a timely manner, this type of competitive behavior cannot be effectively regulated. Due to the multilateral structure of the Internet platform market, the impact of its competitive behavior will be extended to multiple subjects at the same time, and the legal interests involved in the behavior are also more complex compared to traditional competitive behavior, which also leads to the possibility of different judgments in the same case. This has led to extensive discussions in both theoretical and practical circles, mainly focusing on the determination of the illegality of data capture and the issue of compensation for damages. Therefore, we should accelerate the improvement of the "Anti Unfair Competition Law of the People's Republic of China" and relevant judicial standards, maintain the competitive order of the Internet, and promote the vigorous development of the digital economy.

       The first part explains the basic issues of data capture behavior,  analyzes the constituent elements of data capture behavior, the basic types, and the harm of improper use of data capture technology, and points out the unique advantages of data capture behavior in anti unfair competition law regulation; The second part discusses the regulatory status of unfair competition in data capture behavior. In terms of legal norms, the "General Provisions" and "Internet Specific Provisions" of the Anti Unfair Competition Law are the regulatory paths for unfair data capture behavior; The third part clarifies the regulatory dilemma. Due to the relatively lagging nature of legal provisions, there is currently no specific provision that can clearly regulate this behavior. In practice, "general provisions" have become the starting point for judges to handle data capture disputes, but the effect is not satisfactory. This is reflected in the following aspects: the identification model of competitive relationships is not uniform; When determining the legitimacy of an act, the "general provisions" apply to moral generalization, one-way consideration of competitive interests, and "rightization" of the protection of competitive interests. The problems of pre-litigation stop loss and compensation are reflected in the lack of pre-litigation stop loss relief system and the oversimplification of damage compensation system; The fourth part combining relevant experience from outside the country, increase the list of unfair competition behaviors in data capture, limit data competition relationships in a broad sense, introduce a benefit measurement mechanism, clarify benefit measurement methods, resolve conflicts of interest in data capture behaviors, reshape the criteria for determining the unfairness of data capture behaviors, and achieve the transformation of recognition concepts; In terms of pre-litigation stop loss and compensation relief, it is recommended to establish a litigation injunction system, design reference factors and reference standard systems for damage compensation from the perspective of operability, address the current situation where the effect of damage compensation is not ideal, and ultimately achieve the perfection of relevant supporting legal systems.