On The Identification Of Tort Liability Of Advertisement Blocking Behavior

It is a common practice in the territory of internet for the internet service provider(ISP)to conduct ad-blocking behavior through such mediums as ad-blocking software,plug-in and router.At the first sight,it seems that there exist no direct competitive relationship between the software or plug-in provider and the ISP whose ordinary business is affected.However,by snatching internet users to build their own competitive capacity,the tortfeasor who conducts the ad-blocking behavior takes advantage of the competitive strength of the affected ISP illegally,which creates generalized competitive relationship between the tortfeasor and the affected ISP.The ad-blocking behavior violates the universally recognized good practices on the internet and further goes against the public commercial moral.From the perspective of the internet user stickiness,the ad-blocking behavior can lead to great loss in relation to the amount of users and cause damages with regard to the business operation of the ISP.Considering the forgoing,given that the ad-blocking behavior is conducted maliciously and there is no space for the application of the principle of Technology Neutral,the tortfeasor shall hold tort liability for the loss born by the affected ISP.This paper is divided into 5 sections.Section one:on the basis of the analysis of the ad-blocking behavior and several cases,such illegal behavior shall be subject to the Anti-Unfair Competition Law rather than the Copyright Law or the Tort Law.Considering that the Anti-Unfair Competition Law has no explicit provisions with regard to the unfair competition on the internet,such ad-blocking behavior shall be construed pursuant to the general provision of the Anti-Unfair Competition Law.Section two:the identification of the public commercial moral is the premise to the implementation of general provision of the Anti-Unfair Competition Law.As the intension of moral is uncertain and too much space might be left for the discretion of the judges',more objective method shall be applied to identify the public commercial moral.In addition,the so-called principle Non Intervene without Public Interests is still lack of certainty and good sector practices can be recognized as the public commercial moral which ad-blocking behavior shall comply with.Section three:The Anti-Unfair Competition Law was promulgated to create a sound order of market competition and protect the legal rights and interests of managers and consumers.The business model disturbed by the ad-blocking behavior is not under the protection of the Anti-Unfair Competition Law.However,the legal interests of managers who make profits on the basis of such business model shall stay unharmed from the ad-blocking behavior and be protected by laws.Section four:the Anti-Unfair Competition Law only regulates specific behaviors which disturb the order of social economy.And the competitive relationship,which shall not be limited to horizontal competitive relationship and shall be interpreted as generalized competitive relationship,between managers is the premise to identify the order of social economy.Nowadays,it is obviously that the competition on the internet has broken through the industrial and geographical restraints,and it is much more reasonable to treat the same user group as the correlation between different ISP.Section five:the tortfeasor who conduct ad-blocking behavior maliciously shall hold tort liability to the affected ISP and the principle of Technology Neutral provides no exemption for the tortfeasor in this regard.The application of the principle of Technology Neutral shall take the following factors into account to recognize the subject statue of the tortfeasor:(i)if the ad-blocking behavior is conducted to block the malicious advertisements;(ii)if the ad-blocking behavior is conducted for the purposes of illegal profit;(iii)if the ad-blocking function is developed against specific ISP.