| The rise of the Internet economy has affected traditional offline business models,and the Internet-centric business model has developed rapidly.In order to obtain more trading opportunities,Internet market participants with no doubt to use improper ways,violate the laws,and damage the interests of competitors,consumers’ rights and legitimate market order.Traffic hijacking is one of the typical Internet unfair competition behaviors.The main manifestation is that the actor maliciously sneaks into the user’s server to change the user’s domain name or confuses the user with the target website by setting similar icons.Visiting the web page developed by the actor against the subjective will,thereby increasing their access traffic and improving own market share and competitiveness.This kind of behavior will harm the interests of Internet market subjects,damage the orderly market competition order,and infringe on consumers’ right to choose freely.In recent years,cases of traffic hijacking have been frequent.In judicial practice,the identification and trial process of traffic hijacking cases have made different voices.The fundamental reason is that the subject,means,and results of traffic hijacking are not clear,or there is a certain identification.dispute.Based on the background of the network unfair competition behavior,this paper analyzes the property of trafic under the premise of the basic theory of traffic hijacking,analyzes the three characteristics of traffic hijacking behavior,and introduces two typical types of traffic hijacking behavior.Based on China’s existing legal system’s provisions on the subject of traffic hijacking,the author finds that there are many difficulties in identifying subjects in judicial practice,and proposes to maintain a single interest,such as the transformation of overall interests,in the process of identifying subjects,and expand the scope of actors.As one of the market participants,the interests of network users should be effectively protected,so the author believes that consumer organizations and other market participants should be given the right to sue more comprehensively to protect the interests of multiple market participants.The author analyzes the subjective state of actors from three perspectives,including the relationship between technological innovation and subjective fault,the relationship between ex post remedy and subjective"maliciousness",and whether the abductees are treated specially.The classification of traffic hijacking summarizes the difficulties identified by traffic hijacking methods,analyzes the differences between "will-be-traffic" and "free-traffic",judges the attribution of the obtained traffic,and analyzes the illegality of traffic-hijacking methods.The reason why traffic hijacking is improper is because it brings multiple damages,not only to the infringement of the hijacked,but also to the interests of consumers and an orderly competitive environment.So how to effectively identify the damage caused by traffic hijacking?The author believes that the consequences of damage should be limited to actual damage,and the scope of damages compensation should be extended to the interests of consumers and the cost of repairing an orderly competition order.That is,this article conducts a comprehensive analysis of the traffic hijacking determination according to the logical structure of the subject,subjective status,behavioral means,and consequences of damage,and lists Qihoo v.Sogou unfair competition case,Sogou v.Baidu unfair competition case,2345 v.Cheetah,etc.The company’s unfair competition case,Taobao suit and the company’s unfair competition case corroborate the arguments of this article.The theory is combined with reality to summarize the problems based on the determination and trial of traffic hijacking,and comprehensively proposes rule. |
