Research On The Illegality Of Internet Advertising Shielding From The Perspective Of The Chinese And German Anti-Unfair Competition Law

In recent years,cases involving unfair competition disputes regarding Internet advertising shielding have occurred very frequently,and when dealing with such disputes,the Chinese courts apply the general provisions of the Anti-Unfair Competition Law of the People's Republic of China as the legal basis for their trials,and consider such shielding as unfair competition,because they infringe upon the lawful rights of the legally protected video broadcast business operators to receive benefits through the "free video + advertising" business model and violate the principle of honesty and good faith as well as the business ethics.However,this practice of the court has long been criticized.The scholars in the Chinese academic circles,starting from the trial concepts of the United States and Germany which places special emphasis on protecting the interests and respecting the selection rights of the consumers,believe that Internet advertising shielding does not constitute any unfair competition.In particular,a number of judgments rendered in Germany in recent years that Internet advertising shielding does not constitute unfair competition have provided a powerful judicially extraterritorial practical argument for this viewpoint.However,the current research in the academic circle on the illegality of Internet advertising shielding in China has the same defects as those in the judicial practice of the Chinese courts in that they have an absolute view as to the illegality of such activities,but fail to study and classify them.As such,the subsequent illegality comparison research in this regard has the defect of "seeing just the trees other than the forest".The comparative analysis method is mainly adopted in this article,and Germany,a country which has the legal text in a form similar to the form used in China but has judicial judgments distinct from their Chinese counterparts,is selected in the comparison.The comparison of the Internet advertising shielding activities in the two countries reveals that huge differences exist between Germany and China in terms of the identity of the actors and the functions of the advertising shielding software involved in their acts.Thereafter,this article first elaborates on the specific argumentation process adopted by the German courts in trials of cases involving unfair competition disputes regarding Internet advertising shielding in accordance with the clause 4.4(Targeted Obstacles),4.a(Offensive Transactions)and 3.1(General Provisions on Operators)of the Anti-Unfair Competition Law of Germany,and on a final conclusion drawn by the German courts that such acts do not actually violate the applicable laws.Then,it expounds the ideas adopted by the Chinese courts who try such disputes according to the general provision of the Anti-Unfair Competition Law of the People's Republic of China,and who conclude that the Internet advertising shielding has constituted unfair competition.Finally,the article analyzes the reasons for the opposite judgments entered by the Chinese and German courts,and proposes that the Chinese courts should analyze the specific problems on a case by case basis when dealing with the unfair competition disputes regarding Internet advertising shielding,and that the judgment concepts of the German courts should be appropriately consulted to balance the interests of the parties in the individual cases on one hand and protect the interest of the Internet video broadcast business operators on the other hand.Meanwhile,the interest of the actors engaging in Internet advertising shielding and the consumers should be also be taken into consideration and the over-interference of the judicial powers should be avoided to safeguard the freedom of competition.