Study On Antitrust Issues In The Field Of Big Data

The emergence of big data has fundamentally changed the way of business operation and competition,in the digital economy,big data has become a key production factor,the collection or use of data can have an important impact on market competition,which in turn causes high concern of anti-monopoly law.The commercial application of big data not only helps undertakings to engage in traditional monopolistic behaviors,such as cartels,but also causes special problems,such as improper collection or processing of data,personal information and privacy protection,which have a certain impact on the basic theory and entity system of traditional anti-monopoly law,and there is a need to respond to this both theoretical and institutional aspects.This paper mainly combines the existing anti-monopoly practices,around three major anti-monopoly law entities of monopoly agreement,abuse of market dominance and concentration of undertakings,discuss the challengesand institutional responses of big data to the anti-monopoly law value structure,specific rules and analytical framework,the purpose of this discussion is to solve the problem of the application of anti-monopoly law in the field of big data,and to analyze the chaotic understanding and fierce debate about it in the academic community.Big data is a collection of massive data,this is a general understanding,but which can not reveal the intersection between big data and anti-monopoly law,it is easy to cause people to misunderstand the relationship between the two,therefore,in anti-monopoly context,the big data should be defined as: a complex of massive data collection and data analysis capabilities;under the influence of network effects,economies of scale and other factors,a data-driven feedback loop is generated,namely there is a positive feedback effect between user,user data,network service quality and corporate profitability,which represents the competitive nature of the digital economy;big data has legal attributes of personal rights and property rights,and the collection and use of data is subject to the relevant personal information and privacy protection laws,and there would be some controversy about the distribution of property rights of big data,but in reality it is often enjoyed by data controllers,which makes big data enough to have a significant impact on market competition.Big data has a negative side and a positive side in marketcompetition.At present,there is a lack of theoretical research and relevant practice on antitrust issues in the field of big data in China,from the research reports issued by OECD,developed countries and regions,as well as typical cases of law enforcement and justice,the analysis of this issue still needs to return to the three pillars of anti-monopoly law.The commercial application of algorithm creates favorable market conditions for collusion,with the aid of algorithms,collusion between competitors is more efficient and convenient,the combination of algorithm and collusion leads to digital cartels,which are more subtle and difficult to detect;according to the type of algorithm and the role of the algorithm in the collusion,the digital cartels are divided into four categories: "messenger" type,"axis" type,"predictive" type and "autonomous" type,the first two types are classified as concerted practice,which have the highest probability of occurrence,the latter two types are tacit collusion,which has not yet been discovered;in terms of the anti-monopoly regulations of digital cartels,the main jurisdictions have had relevant anti-monopoly practices,or the current anti-monopoly law is sufficient to regulate such behaviors,while China needs a prohibitive provision on monopoly agreements which is added into the General Regulations of the anti-monopoly Law,and the elements of“intentional contact or information exchange” in the identification ofconcerted practice are abandoned,and more attention is paid to the examination of behavioral evidence and economic evidence,at the same time,to achieve regulatory purposes,anti-monopoly law enforcement authority can use big data technology to achieve digital governance.Data is non-exclusive,but can be collected and used exclusively,so it can not be assumed that data controllers have no market dominance.According to whether data is separately licensed or transferred,data is divided into “self-use type” data and “he-use type” data,and market dominance determination of the two needs to be carried out separately,the former focuses on analyzing the influence of big data on the undertaking obtaining competitive advantage,the latter needs to define the relevant data market,which can be considered from the perspective of difference of online data,offline data and device data and segmentation of online data market,the market dominance is determined by considering market share and barriers to entry;data is often generated as a by-product,Essential Facility Doctrine can be applied in the field of big data,there are three components of “essential data”: data is indispensable and difficult to be copied,and refusal to opening and sharing data may eliminate effective competition in the downstream market and lack of justification for the refusal to opening and sharing data;improper collection and control data can be included in the anti-monopolyregulations,but must be returned to the criteria for exploitative abuse based on consumer welfare,which can be characterized as excessive pricing or new exploitative abuse.The turnover filing threshold have been unable to capture concentration of undertakings involved in data aggregation,and it is likely to be outside the anti-monopoly regulation,it is necessary to increase the filing threshold about scale of transaction size;from the anti-monopoly review practice of data-driven concentration,competitive impact assessment of the concentration still needs to be carried out from three aspects: unilateral effect,synergy effect and foreclosure effect,which will focus on the substitutability and scarcity of data;the most likely competition damage caused by the concentration of undertakings involved in data aggregation is data foreclosure,so behavioral remedies should be given priority,which can establish the rules for compulsory undertakings to open the data under reasonable conditions after concentration;the concentration of undertakings involved in data aggregation may involve privacy issue,in order to prevent anti-monopoly law from being abused,it must be clear that only when the damage to privacy protection is attributed to competition damage,the privacy issue is included in anti-monopoly law analysis,when privacy violations occur,restrictions may be imposed on the personal information and privacy protection policiesof undertakings.Regarding the necessity of antitrust in the field of big data,there are two viewpoints in the academic community: the unfounded theory and the precautionary theory.Whether it is based on the basis of theory or practice,the unfounded theory is untenable,and can not be recognized by the practice community,therefore,the anti-monopoly problem in the field of big data needs to attract attention and attention.From the perspective of value structure,institutional framework and analytical methods of anti-monopoly law,big data is not enough to have a subversive impact on the anti-monopoly law,however,it is necessary to extend and expand the traditional anti-monopoly law theory and system,in this regard,there are three adjustment directions: incorporating non-price factors such as quality and privacy into consumer welfare indicators,using the relevant data market as a new dimension to define relevant markets,and targeting the three pillars of anti-monopoly;from the perspective of institutional appeal of China's anti-monopoly practice,institutional guarantee of the national big data strategy,and competition of the right to speak of international rules,it is urgent to introduce the “China Program” in the field of big data,and it is possible to adopt an anti-monopoly guideline in the field of big data,which includes conceptual definitions,general issues,and antitrust law analysisguidelines for three types of monopolistic behaviors.