Research On The Identification Of Unfair Competition In Internet Advertising Screening Behavior

Regarding the nature of online advertising shielding behavior,there are copyright infringements in the academic circles,third-party infringement claims and unfair competition.However,according to the current legal provisions,it is difficult to regulate online advertising screening behavior through the first two doctrines.Relevant stakeholders often file lawsuits in court on the grounds of unfair competition.The courts in our country usually apply the general provisions of the Anti-Unfair Competition Law for 93 years.The online advertising screening behavior violates the recognized business ethics and the “nonpublic welfare necessary non-interference principle” created by the judges.According to this,the behavior is unfair.Recently,some courts of first instance in China have taken the view of safeguarding consumers interests and considered that online advertising shielding behavior is justified.In addition,Germany and the United States have paid more attention to protecting consumer's independent choice and market competition freedom and innovation in similar cases,and determined that online advertising shielding does not constitute unfair competition or infringement.The difference between the judicial recognition at home and abroad stems from the different value orientation of the anti-unfair competition law.China should be inspired by the foreign recognition path,and should not negatively identify the online advertising shielding behavior,and should be allowed within a reasonable range.The newly revised Anti-Unfair Competition Law clarifies the concept of interests of the trinity of competition order,the interests of operators and the interests of consumers,and increases the Internet monograph,which will have a major impact on the legal application of unfair competition in the network field.Under this view of interests,we re-examine the basis of judging that online advertising shielding behavior constitutes unfair competition.We find that these identifications are based on the values of strictly protecting the interests of operators,ignoring the interests of consumers,and not just as the value orientation of competition law runs counter to one another.At the same time,the unfair competition behavior listed in the Internet special article is limited,and does not include the online advertising shielding behavior.It is difficult to effectively determine whether the online advertising shielding behavior constitutes unfair competition,and it needs to be explained according to the system interpretation method and purpose.In the specific application of the Anti-Unfair Competition Law to determine the legitimacy of online advertising shielding,we should always implement the core elements of its application,fully consider the market competition order,the interests of consumers and the overall interests of society.In summary,when we specifically determine whether online advertising blocking behavior constitutes unfair competition,we first need to limit the application of general terms,prohibit the escape from general provisions,and prudently create relevant applicable rules.Secondly,the Internet monograph does not explicitly state whether online advertising blocking behavior constitutes unfair competition.We need to improve the basic terms of the Internet monograph,clearly define the elements of the Internet specific provisions,and specifically determine whether online advertising shielding behavior constitutes unfair competition.Finally,in China's current referee thinking,there is still a strong concept of protecting the interests of operators.We should pay attention to the balance of interests and use the principle of interest measurement in online advertising screening cases.Only by accurately grasping the purpose and objectives of the anti-unfair competition law can we solve the problem of identifying new types of Internet unfair competition cases such as online advertising screening behavior,unifying the court's referee path,and measuring the legitimacy of behavior in the case and safeguarding the freedom and fairness of market competition.