Optimizing The Path To Recognize Internet Ad-blocking's Legitimacy

In recent years,video website operators frequently prosecute Internet Ad-blocking tools developers,which have caused widespread discussion in various areas especially in the academic community,for the Internet Ad-blocking,scholars mainly focus on the discussion on the copyright infringement,third party infringement and unfair competition.In China,it is difficult to provide a strong basis for the regulation of Internet Ad-blocking tools under the existing legal framework at this stage.Therefore,unfair competition is mainly used to protect the interests of the video website operators.In the judicial precedents before 2018,the courts mostly regulated the general terms based on the "Anti-Unfair Competition Act" and determined that the Internet Ad-blocking tools developer had undermined the video site's business model and violated the principle of good faith and business ethics,which means that Ad-blocking tools developer has unfair competition act.However,the academic circles are argumentative about the court's judgment criteria and scholars think many issues need to be clarified.Some scholars hope that the cases related to the Internet Ad-blocking can be resolved through the newly revised Article 12 of the "Unfair Competition Law",unfortunately the coverage of that article is limited.In comparison to the cases in China,courts in Germany and the United States are more cautious about the behavior of Internet Ad-blocking tools,and tend to reconcile the technology and competition issues with the market itself.As early as in the "Sony case",the United States established "technology neutrality" criteria and makes video recorders with ad-filtering capabilities exempt from liability for copyright infringement.Since then,the US"Communications Regulation Act" has endorsed the users' right to control the information,which provides a wide range of space for the development of information shielding technology,while German courts encourage Internet operators to seek multi-faceted business models and,at the same time,take into account the protection of software developers' market competitiveness and the interests of Internet users.Although the above two countries have different angles,it is generally accepted that the interests of the operators are only a criterion to be considered.In contrast,users' interests are a more important criterion for judgment.Anti-unfair competition law is not a purely commercial interest protection law.Its social standard attribute requires that it take into account the interests of different operators,consumers,and incentives for technological innovation.In January 2018,the courts announced the verdict of the first instance for the cases of "Happy Sunshine v.Weisi" and"Tencent v.Century Star".The courts found that the Internet Ad-blocking cases were not related to unfair competition.The new criteria again sets off an intense discussion on the legality of Internet Ad-blocking cases.Based on the legislative purpose of the Anti-Unfair Competition Law,in this work,in combination with the practical development characteristics of China's Internet industry at this stage,we propose to avoid the one-size-fits-all approach in the determination of the legality of Internet Ad-blocking,the principle of proportionality can be introduced,simultaneously,we need to put it into the three various elements of the principle of necessity,necessity and the principle of narrow-scale proportions one by one,in addition,the multi-stakeholders of video website operators,shielded software developers and consumers should be comprehensively weighed and considered with the maximization of the overall interests and minimization of damage.