The Research Of The Issue On Whether The Online AD-blocking Is An Illicit Competition Behavior Or Not

There are some viewpoints in the academia about the nature of online AD-blocking,including copyright infringement theory, the third party infringing creditor’s right theory and illicit competition theory. But it’s hard for the copyright infringement theory or the third party infringing creditor’s right theory to be a strong evidence for regulating the AD-blocking behavior according to the existing law.The operator of the website which suffered the business interest damage can’t put forward the tort lawsuit easily,so as the plaintiff they usually take the lawsuits for the illicit competition in the cases relating to online AD-blocking. The court in China determine that the online AD-blocking is the illicit competition behavior without exception in all of the existing lawsuits,based on the general clause of anti-illicit competition law and the non-public necessary no interference principle.Besides, the article 13th in the draft of anti-illicit competition law that the Legal Affairs Office of the State Council published recently is deemed as the specialized clause to determine the online illicit competition behavior. According to this clause,the online AD-blocking may also will be determined as the illicit competition behavior in the future.The attitude towards online Ad-blocking in America and Germany are more gentle compared with China. The United States developed the Sony Doctrine in Sony case, which made the Betamax free from bearing copyright infringement liability. In the Internet age, the Communications Decency Act once again clear away the obstacles for the development of information filtering technology, and affirm that the network users have the right to control which kind of information that their computers can be received. In Germany, they put the proportional principle into the general clause of the anti-illicit competition law and try to make the border clear between the different rights and interests,give the full respect to both the consumer’s rights and the competitor’s liberation while providing the protection to the plaintiff’s commercial interest. The author thinks that the experience of the United States and Germany is worth using for reference.The anti-illicit competition law is not a merely commercial interests protecting law, it is aimed at providing the protection for the interests of enterprise operators, consumers and the public. So we should measure all of these interests when we make a judgment about whether a behavior is illicit or not. Taking the other competitor’s freedom and consumer’s right into account and providing the limited protection for the enterprise operators.At present, the AD-blocking behavior is not a serious threat to the website’s interest. And the AD-blocking is reasonable for it meets the consumer’s demand of improving the browsing experience,safe guarding the information security and controlling their computers. We should not forbid all the AD-blocking behavior instead of allowing its existence. On the one hand it can respect the consumer’s right to select on their own and the right of fair trade.On the other hand it can also stimulate the development of the information filtering technology.