Research On The Application Of Laws In The Field Of Big Data Operators' Abuse Of Market Dominance

With the advent of the digital economy era and the information revolution,operators can help them with accurate marketing,assist decision-making,promote products and services,improve products and processes,and increase revenue through analysis and processing of large amounts of data.The competitive advantages brought by big data make data a core resource for operators in market competition.At the same time,big data has also changed the business models and forms of competition among operators in the market.Because big data is generated on the Internet,the data itself and scale can become barriers to market entry,network effects and user lock-in effects to enhance or maintain their competitive advantage,making it easy for operators with big data to form a dominant market position.The characteristics of platform activities,bilateral and even multilateral markets,spillover effects,cross-border competition,network externalities,user lock-in,and data range effects of business activities in the big data field are proposed for investigation and prosecution of cases of abuse of market dominance by operators in the big data field.Many new challenges have emerged,such as the case of Google 's abuse of market dominance shopping comparison service,which has important influence in the world,hi Q v.Linkln 's abuse of market dominance to prevent data capture,Facebook 's abuse of market dominance to collect and use user data,etc.The dilemma of application of laws is urgently to be resolved.These legal application issues are mainly concentrated in three aspects:(1)the definition of the relevant market for operators in the field of big data encounters difficulties;(2)the determination of the dominant market position of operators in the field of big data faces challenges;(3)New problems arise in the evaluation and determination of “abuse” by operators in the field of big data.First of all,in the definition of relevant markets,regarding difficult issues such as the difficulty of selecting multilateral markets,the traditional alternative analysis method and the difficulty of applying the hypothetical monopolist test method,this article advocates that it can be reasonable in cases where the definition of relevant markets is extremely complex or unnecessary Dilute the relevant market;in cases where the relevant market must be defined,the relevant market can be determined according to the type of platform of the operator and the market where the act is sued.As far as the defined method is concerned,in the fee-based market,the traditional hypothetical monopolist test method can be improved to fully consider the impact of characteristics such as the bilateral market in the field of big data,network externalities,and user lockin effects;on the free market,then Adjust the core consideration factor of "price" in the hypothetical monopolist test method to "quality",analyze whether consumers turn to other alternative similar products through the change of quality factors of non-price products,and combine with other definition methods to comprehensively define The scope of the relevant market.Secondly,in the determination of market dominance,we should fully consider whether the data can bring market dominance to operators,and propose to weaken the identification of market share in the case review and the impact of new market entry barriers.In the past,the role of the most important market share in determining the dominant position,focusing on the operator 's dominance of data,increasing the consideration of market entry barriers,and conducting case studies on other economic characteristics of integrated big data,etc.,to identify the data operator 's Market dominance.Finally,in the determination of "abuse",it analyzes and discusses whether data privacy should be included in antitrust laws,and advocates that when operators with a dominant market position reduce data privacy protection and conduct unfair competition to produce anti-competitive effects,antitrust laws It should be regulated.Analyze and discuss whether the dominant market operators refuse to provide data as "abuse",and advocate that only in the field of indirect competition,upstream operators with market dominance,the data they refuse to provide constitutes for the downstream market operators " "Critical facilities",its refusal to provide data will cause the operators in the downstream market to fail to carry out business activities and compete and constitute abuse.Faced with the difficulty of identifying “abuse behavior” and the identification of anti-competitive effects,it is proposed that the identification of “abuse behavior” should proceed from the essential characteristics of “abuse behavior” and focus on whether the use of data and algorithms by operators is legitimate;Among them,the determination of the effect of anti-competitiveness can be judged in the case using the "if there is no test" analysis method,and the reason for the defense proposed by the operator is fully considered.Although our country adheres to the principle of statutory law,when legislation fails to respond properly to big data,it actively responds to and explores new problems encountered in the application of the law of market dominance by operators in the field of big data through the application of laws.Significance: On the one hand,it can promptly promote the effective resolution of the difficulties in the application of antitrust laws in the field of big data in practice in China,on the other hand,it can also accumulate experience and lay a foundation for relevant legislation,and give full play to the active role of law application in legislation.To this end,perfecting the legal application of the abuse of market dominance by operators in the field of big data in China requires efforts in both judicial and law enforcement aspects.First of all,antimonopoly judicial authorities can actively try and boldly explore and promote the application of legal dominance of market dominance by operators in the field of big data in China in a judicial interpretation,and at the same time issue relevant case guidance in a timely manner to promote the unification of legal application And optimization.Secondly,as far as China's anti-monopoly law enforcement is concerned,law enforcement agencies should establish a new concept that meets the requirements of the development of the data economy.It should not only focus on pre-control,that is,establish an early warning and prevention mechanism for abuse of market dominance in the field of big data,but also pay attention to post-relief relief.That is,in the investigation and determination of cases,the impact of big data on competition should be fully considered to achieve effective regulation of the abuse of market dominance by operators in the field of big data in China.