Case Study Of Unfair Competition In Online Advertising Filtering Behavior

Internet advertising filtering is a new market competition mode derived from Internet technological innovation.Because this competition mode often has a negative impact on the commercial mode of "free +advertising" for video website providers,judges in judicial practice usually conclude that this competition behavior violates the "Principle clause" of the Anti-Unfair Competition Law.That is to say,it is violate the principle of good faith and the stipulation of the accepted commercial ethics clause,thus constituting unfair competition.However,due to the difficulty of clarifying the connotation and extension of the principle of good faith and recognized business ethics in the field of competition law,there is no uniform applicable standard in the process of evaluating the legitimacy of online advertising filtering behavior by " Principle clause",so that judges are largely influenced by their subjective factors in judging the legitimacy of competitive behavior,and there is a widespread imbalance in the protection of interests in judgments.The conclusion that online advertising filtering constitutes unfair competition is questioned.In order to solve the problem of inconsistent criteria for judging the legitimacy of online advertising filtering in judicial practice,judges and even scholars in the theoretical circle have made various attempts,however,up to now,there has not been a mature,standardized,scientific and reasonable unified applicable standard.The article combs all the relevant judgment documents about online advertisement filtering that can be accessed by the Chinese Judicial Documents Network from 2013 to May 31,2018,and selects three typical cases from them.It summarizes the judgment path of Chinese courts in dealing with online advertisement filtering unfair competition and points out the existing problems of judicial adjudication in current judicial practice in China.Then the comparative analysis method is used to enumerate the legislative experience and case trial ideas of the United States and Germany on online advertising filtering behavior.By studying the basis and criteria of judging the legitimacy of online advertising filtering behavior in the judicial practice of the two countries,the paper reveals the enlightenment of the judicial practice of the two countries on the qualitative analysis of online advertising filtering behavior in China.Finally,the principle of proportionality is introduced into the process of judging the legitimacy of online advertising filtering behavior,and the connotation of the principle of good faith and accepted business ethics is clarified and concretized in the way of legal hermeneutics.Combining with the case,it is gradually analyzed whether the acts involved conform to the principles of appropriateness,necessity and proportionality,so as to make the measurement of interests more objective and thus appropriately contracted.The discretion of judges should be restrained,and the conviction of the verdict results should be strengthened.Starting from the point of view of interest balance theory,this paper introduces the principle of proportionality as the method of concrete application of " Principle clause ",and puts forward a set of concrete analysis schemes which are legitimate,reasonable,operable and effective to judge the legitimacy of online advertising filtering behavior.The introduction of the proportional principle analysis method not only enriches the content of academic research on the legitimacy of online advertising filtering behavior,improves the criteria for determining the legitimacy of new Internet unfair competition behavior,but also provides a positive reference value for judges and law enforcement agencies to judge the legitimacy of online advertising filtering behavior in accordance with the " Principle clause " in practice.In addition,the concept of behavior identification of interest balance is conducive to enhancing the predictability of operators' market competition behavior,and is also of great significance to the technological innovation of the Internet and the development of social economy.