An Analysis Of Unfair Competition Via Network Technology

With the rapid development of technology on the internet, a variety of new types of unfair competition on the internet emerges in recent years, including ad-blocking, linking, malicious conflicts between software, etc. Those new types of unfair competition are usually conducted via network technology, and result in a mass of disputes in chaos, which requires to be regulated. However, the existing Anti-Unfair Competition Law (hereinafter referred to as "the AUCL") does not specifically stipulate such acts. Thus, the judgements of such cases depend on the discretion of the courts to certain extent. On February 25,2016, the Revision of the Anti-Unfair Competition Law of China (Draft for Review) (hereinafter referred to as "the Revision") was published for public comments. The Revision newly covers certain unfair competition acts using network technology or application services, which implies its emphasis on such unfair competition acts. Therefore, this article aims to make a specific and complete analysis of those unfair competition acts via network technology, including the forms, legislation, trial, and international overview. As a result, the article provides different advices for legislative departments, judicial departments, administrative regulators and business operators to deal with such conducts in the future. The whole article is divided into four parts:The first part introduces the forms and characteristics of such acts. Those unfair competition acts basically behave as two categories:one is to damage other business operators’normal operation of via network technology, and another is to take advantage of other operators’operation. Such unfair competition acts are commonly high-tech, invisible, complex and international, etc.The second part gives an analysis of the courts’judgements of such cases. First, the courts usually take three steps to identify the unfair competition acts, and adopt different modes to prove their arguments. Second, the courts also take such factors into consideration as the infringer’s subjective intention, consumer’s interests and business operator’s reputation. Third, the business operator often use technology neutrality, industry practice and public interest as defense.The third part provides an overview of unfair competition via network technology in other countries. In Germany, the Anti-Unfair Competition Law of Germany provides general provisions to regulate such acts. While in the U.S., there is no Anti-Unfair Competition Law, and such acts are regulated by intellectual property laws, tort law, etc. Those international differences also give us certain clues which China can learn from.The last part provides certain advices for legislative departments, judicial departments, administrative regulators and business operators to deal with such conducts in the future. Apart from the new provisions provided by the Revision concerning such acts, the other relevant parties also need to improve themselves. For example, the courts should pay more attention to market effects and adopt preliminary injunction system, etc. The administrative regulators should have better understanding of their power and responsibilities. The business operators should pay emphasis on self-discipline and intellectual property, etc.