| November 4th,2017,at the 30 th meeting of the 12 th NPC Standing Committee,the State Council passed the Amendment of the Law of the People’s Republic of China against Unfair Competition.It has been the first amendment of the Anti-Unfair Competition Law since 1993.In order to adapt to the constant development of Internet economy and social media,the Amendment has added the article of unfair Internet competition(article 12)as a regulation.Besides,Internet commenting behavior regulated by anti unfair competition law is an act of unfair analysis of the products or services of other operators in the name of their own or in the name of others,through the Internet,by false statements,manufacture,dissemination of false information or misleading information.Internet commenting behavior is becoming more and more common in the Internet business society.Its essence is the expression of freedom of business speech.In this case,article 11 and article 12 have produced a concurrence in the conduct of Internet business defamation.The so-called Internet Business Defamation is the act of making baseless negative comments or misleading guidance on other operators’ products or services on the Internet.If it does not make a denigration,it is regarded as an action of making comments.Online commenting is becoming increasingly common in a commercial Internet Society,and its essence is presented as the freedom of expression enjoyed by operators.However,when the freedom of commercial speech goes beyond the boundary,it is likely to damage rights of other operators,thereby forming a Business Defamation.Before the implementation of the Amendment,the Anti-Unfair Competition Law regulates Internet evaluation behavior based on articles of Business Defamation,but there could be technical controversies during its implementation;whether there is any competition or not,if the comment is misleading,etc.However,after the implementation of the amendment,online commenting will be included in the regulation scope of both Internet Behavior and Business Defamation terms.As a result,the two have produced a concurrence in the identification of Internet Business Defamation.The regulation of internet commenting is not only difficult in the legal competition,but also in the determination of the competitive relationship and the identification of the objective aspects,which are difficult to apply to the law.Regulating online commenting should begin with considering the concurrence of articles,Article 12 as a general term should be arranged after Article 11 to identify Business Defamation in accordance with the basic legal principle that special terms are prior to basic terms.Secondly,in the process of identifying Business Defamation,the scope of competition should be expanded to meet the objective demand of the Internet market.Otherwise the purpose of the legislation of Countering Unfair Competition Law will not be accomplished.In addition,the revised version has added the production and dissemination of misleading information to the objective aspects of Business Defamation,which has ended the controversies over this problem and strengthened the regulation on online commenting.The judgement about “misleading”should be comprehensive in the process of identifying Business Defamation However,the study of the regulation on online commenting should not be limited to the law hermeneutics.By discussing the application of existing legislation and sorting out problems that cannot be solved by legal interpretation,improvements could be made to the regulation on the Internet Business Defamation in the following two aspects: First,perfect constitutive requirements.Second,perfect the burden of proof and liability fixation principles.Even though this proposal still needs to be tested in practice according to the existing law,it could be helpful in protecting the legitimate rights and interests of operators and maintaining a fair competitive environment by viewing the existing law from a dialectic perspective based on it. |
PDF Full Text Request