Analysis Of Antitrust Law On Data Applying The Essential Facilities Doctrine Under The Age Of Big Data

With the arrival of the Big Data Era,great changes have taken place in the source,the type,the storage mode and the scale of data,and the value of data has been paid more and more attention by all walks of life in the society,and it has gradually become an important resource for enterprises competing for each other.In this context,competition law cases about the opening and sharing of data emerge one after another,while the case of HiQ Labs and LinkedIn and so on which are the typical cases raise the question of how to apply data to the essential facilities doctrine in Antitrust Law,including whether it is necessary for data to apply the essential facilities doctrine,and what are the defining method and the elements of composition in date applying the essential facilities doctrine and so on.It has become a difficult problem in theory and judicial practices.In fact,data has the basis of Antitrust Law in applying the essential facilities doctrine.In one hand,it has the functions of market feedback,prediction and innovation,in the other hand,it can be easily used by operators as market barriers to exclude and restict competition.And the value of data in the Big Data Era lies in achieving innovation and upgrading through sharing,so clarifying how the data applies to the essential facilities doctrine is actually making the data,which has the characteristics of essential facilities,open to the outside world so as to promote competition and innovation and remove data market barriers.However,due to the controversial nature of the essential facilities doctrine,the uncertainty of the data value,the dynamic competition of the data industry and the primary development stage of the data industry,it is necessary to adopt the idea of "prudent application".At the same time,the principle of proportionality and the principle of reasonable analysis should be the boundary of the concept of "prudent application".And by analyzing the traditional elements of the essential facilities doctrine and combining with the particularity of the data industry,the essential facilities doctrine for data application should be five constituent elements.That is: data controller and applicants for data access are separately in the data industry upstream and downstream,and they are in an indirect competition relationship;the rejected data is necessary for effective competition in downstream markets;the acquisition of data is difficult to replicate;the openness of date is feasible;the refusal to open data is without justifiable reasons.In view of the above problems,the legislation should pay attention to the following four aspects: establishing the essential facilities doctrine in Antitrust Law,perfecting thepricing mechanism of the essential facilities doctrine,clarifying the ownership of data and strengthening privacy protection in data opening.Law enforcement and the administration of justice should focus on the following three areas: focusing on economic analysis,coordinating the relationship between data regulation and the application of Antitrust Law,and adhering to the thinking of "case analysis".So as to solve the problem of applying the the essential facilities doctrine to the date,and promote the development of Chinese data industry and Antitrust Law in the Big Data Era.