Antitrust Law Restrictions On Data Utilization Of Operators

In the era of the digital economy,data has become a key production factor in many industries,and it plays a key role in market competition.While paying attention to datarelated issues,we must first make clear that data is objectively and functionally different from personal information and big data.We cannot simply equate data-related issues with personal information protection issues or big data issues.Data itself has no independent value,but is realized through the collection,storage,analysis,and use of the operator,that is,the use of data.Due to the positive data-driven effects between users,user data,network service quality,and corporate profitability,the use of data by operators in the digital economy can easily have a direct impact on market competition and consumer welfare,which in turn triggers antitrust laws.Of high concern.However,under the behavioral control mode of the modern antitrust law,the regulation object of the antitrust law is the monopoly behavior performed by the operator rather than the monopoly state.Therefore,the antitrust law should not evaluate the data control or possession of the operator.Instead,we should pay attention to whether market behaviors implemented by operators using data will have the effect of excluding,restricting market competition,and damaging consumer welfare.It is worth noting that the data utilization behavior of the operator is the basic content of the operator’s rights under the perspective of economic law,which includes the legitimate data utilization behavior that can cause positive market competition effects or improve consumer welfare,and also can Competition results in monopolies that exclude,restrict the effects of competition,and infringe on the interests of consumers.Antitrust laws should not provide “one-size-fits-all” regulation on the use of operator data,but rather exercise public equity for the purpose of maintaining market competition order and protecting consumer welfare.Powers “restrict” certain rights of operators,and set reasonable boundaries for market behaviors that operators implement through the use of data.The monopoly agreement prohibits,abuses market domination regulations and centralized control of operators.It is known as the "three pillars" system of China’s antitrust law.Based on the combination of existing antitrust laws with existing cases and law enforcement cases,it will be a controversial operator.Data utilization behaviors are placed in the existing entity system framework,and it will be found that there are dilemmas in the application of laws that are difficult to identify in digital monopoly agreements,difficult to determine data abuse,and difficult to review in the concentration of data aggregation operators,and need to be analyzed and responded to one by one.The widespread application of the algorithm in business activities has significantly improved the frequency of interaction between operators and the transparency of market information supply,and thus made collusion between operators more efficient and convenient.The cooperative behavior of operators using algorithms can be called a digital monopoly agreement.It is worth noting that in addition to playing the role of "messenger" as an auxiliary tool for transmitting competitive information to reach an "algorithm-assisted" digital monopoly agreement,the algorithm may also replace the operator to reach a digital monopoly agreement under the role of "deep learning" technology.As for the "algorithm-assisted" digital monopoly agreement,it does not deviate from the theoretical and institutional framework prohibited by the existing monopoly agreement,and it can be classified as a cooperative behavior prohibited by China’s "Antitrust Law." For the "deep learning" digital monopoly agreement,it is necessary to reform the prohibition of the monopoly agreement to provide space for the application of the implicit collusion theory in the antitrust law.In addition,the supervision of algorithms involved in the case through emerging technologies such as big data can solve the problem of evidence collection brought about by digital monopoly agreements to a certain extent.The definition of the relevant market and the determination of the dominant market position are prerequisites for determining the abuse of operators.In the review of antitrust cases involving data abuse by operators,consideration should be given to whether to conduct relevant data markets according to the different types of data involved.Division.In the process of determining the market dominance of the operator,in addition to the consideration of general factors such as market share and market barriers,the scarcity of data in the relevant market needs to be considered.The data controller must never be considered a data controller because the data is easy to replicate in objective attributes.Not gaining a competitive advantage.In the judgment of abusive behavior,the data abusive behaviors implemented by operators can be divided into exclusive and exploitative abusive behaviors in antitrust law theory.The former mainly refers to the behavior of operators with a dominant market position in refusing to openly share "critical data",while the latter mainly includes the improper collection and excessive use of data by the operators.The refusal of “critical data” to open sharing can use the “critical facility theory” in the antitrust law,but the definition of “critical data” should be based on the indispensability,non-replication,and lack of justification and openness of the data in question Strict restrictions are imposed on conditions such as feasibility to prevent infringement on the legitimate rights and interests of data controllers.The improper collection and excessive use of data can be based on theoretical evidence and classified as unfair high prices and differential treatment in China’s "Antitrust Law."A single turnover standard is very likely to enable data aggregation operators to escape the review of the antitrust law,and it can be effectively incorporated into the supervision of the antitrust law by adding a transaction scale standard.Looking at the existing practice of centralized control of operators,to evaluate the effect of centralized competition of operators involving data aggregation,it should be fully investigated whether the data aggregation caused by the concentration of operators will have unilateral effects,synergistic effects,and blockade effects.In view of the fact that the most direct market competition damage caused by the concentration of data-gathering operators is the data blockade effect,the behavioral relief method represented by opening the data involved in reasonable conditions is the best choice.In addition,the concentration of data-gathering operators may involve privacy issues.To prevent the generalization of antitrust laws,it must be clear that privacy issues are only included in the analysis of antitrust laws when damage to privacy protection is due to competition damage.And when necessary,the privacy protection policy is added as a restrictive condition for the concentration of operators.The emergence of emerging technologies will always lead to debates over whether to regulate and how to regulate.The damage to market competition and consumer welfare caused by digital monopoly agreements,data abuses,and data aggregating operator concentration implemented by some operators is obvious,and it should obviously be subject to antitrust regulations.However,it should be noted that the above actions have not caused subversive effects on the antitrust law framework,and only need to make appropriate adjustments in the analysis paradigm and value structure to achieve the expansion of consumer welfare standards from price to multiple.At the same time,we should fully realize that the use of operator data may have a positive impact on market innovation.We shall “lenient” the setting of the anti-monopoly law ’s pre-defense rules,and set the post-regulatory rules to be strict.From the perspective of comparative law,although the operator’s data utilization behavior is not enough to promote the systematic revision of antitrust laws in various countries,antitrust enforcement agencies in various countries have affected the digital market platform effect,the impact of data and algorithms on market competition,and privacy protection.The non-price competition dimension has undergone in-depth research and reflection,and China should respond to the above issues during the revision of China ’s AntiMonopoly Law.From the perspective of the institutional demands of antitrust practice in the digital economy era and the improvement of the right to speak in the development of international antitrust regulations,China should also actively explore the "China scheme" restricted by antitrust laws on the use of operator data.The antitrust guidelines can effectively improve the operability of the antitrust law in regulating the monopoly behavior of operators using data.