Criticism On Judicial Applications Of The General Clause In Anti-unfair Competition Law In Ad-Blocking Cases

The General Clause of the Anti-Unfair Competition Law is always applied in the ad-blocking cases.The judgements were highly consistent,and almost all of them grant that the ad-blocking behaviors constitute the unfair competition.Different courts have different logics,including making the "commercial ethics" concrete,granting commercial interest protectable legal status,identifying that damage was present,and believing the judgement would be beneficial for consumer welfares and public interest.The new Anti-Unfair Competition Law promulgated in 2017 has added"Internet Terms",which was hardly applied in the ad-blocking cases.Even if applied,it was the "bottom items".The commercial ethics is too abstract to apply directly.The ethics in Internet commerce is almost impossible to meet the standards widely accepted by every participant.Different from the protection methods for rights of traditional civil law,the Law against Unfair Competition focus on regulating the behaviors rather than protecting the interests of parties.Neither business model nor commercial interest could be the established protected object.Competition is always accompanied by damage.The damage should not be an element,even not a tendency factor in evaluating unfair competition behavior,which should only be used as a basis for calculating the compensations.Consumer interest gradually becomes one of legal interests of unfair competition law.However,the consumer interest of the Law against Unfair Competition is different from civil law and the Law on the Protection of Consumer Rights and Interests.When consumer interest is considered in evaluating the legitimacy of competitive behavior,it refers to general interests of the consumers group rather than the interests of the specific consumers.The evaluation process of the legitimacy of competition behavior is actually a balance of the interests of all parties.When using the interests balancing method in ad-blocking cases,the most important thing is to deal with the compromise of the interests of all parties in the process of dynamic competition.The interests of all parties should be more carefully differentiated in the single case.