Research On Identification Of Acts Of Unfair Competition In Data Capture

Under the trend of the generalization of the development of competitive relations,there are domestic views that the determination of unfair competition behavior does not require consideration of the competitive relationship.For the case of data capture unfair competition,the identification of the competitive relationship is of great significance.It can prevent data capturing behavior that only harms the consumer’s personal information rights but does not affect the legitimate rights and interests of the operators and the fair competition order being incorporated the scope of the anti-unfair competition law,thereby avoiding conflicts between the Anti-Unfair Competition Law and other laws relating to the protection of consumer personal information rights.Under the Internet economic environment,the intersection and coincidence of business between operators has become a very common phenomenon.Internet operators who are not in the same business field have also launched various fierce competition behaviors because of obtaining users resources.The determination of competitive relationship in the cases of data capturing unfair competition should not be limited to the same business field,but should adopt the standard of competition in a broad sense.Regarding the identification of network operator qualifications in data capturing unfair competition cases,the data controller’s products or services should not be required to have direct profit-making purposes,but should be judged by if they are engaged in market business.It shouldn’t deny the qualifications of Internet operators because of the non-profit status of their products or services.For investigating whether there is competitive relationship between the data controller and data capturer,in addition to examining the business field of both parties,it is more important to consider whether the products or the services that provided by the data controller and data capturer have an alternative relationship and whether they target the same user groups.The identification of acts of unfair competition in data capture requires substantial damage to the interests of the data controller.The premise that the data controllers’ data interests suffer substantial damage is that the data controllers has legitimate interests in the data that collected by themselves.This needs to be met,the collecting and using of data controller in compliance with relevant laws and regulations,certain cost investment has been spend for data collecting and the data can bring reasonable expectations of competitive advantages to the data controllers.For the judgment of damage,we can learn from Herbert Hovenkamp’s theory of competitive damage,through beforehand perspective,which constitutes substantial damage to the damage caused by the expected income of the data controller before the data collection,and the benefit of the part exceeding the expected income belongs to the spillover effect.No protection should be given.When applying the principle of good faith and business ethics to justify data capture behavior,it should be noted that not all data capture that do not follow the “crawl protocol” are unjustified.At the same time,the court should be cautious in applying the "free-riding" theory for Identification of acts of unfair competition in data capture.It can’t conclude that perpetrators’ subjectively malicious because of the unauthorized data using.Otherwise,the data controller may be have the data interests of almost similar rights.Considering the “spill-over effect” of intellectual achievements,when the court applies the “free-riding” theory to the trial of data capture unfair competition cases,it should examine more the degree of loss suffered by the data controller and the Subjective state of the data capture.Since the principles of good faith and the business ethics in the general provisions of the Anti-Unfair Competition Law are too abstract,it is necessary to combine the means of data capture and the damage caused by the data capture to analyze the fairness of data capture.For the data capture behavior that exceeds the relevant data acquisition and use agreement,it violates the principle of honesty and credit and has unfairness.In 2017,China’s revised Anti-Unfair Competition Law,Article 2,paragraph 2,added consumer rights,which made consumer rights become an important protection target of Anti-Unfair Competition Law and the important factor of legitimate behavior judgment.The act which against the user’s willing to capture the user’s personal information data is a damage to the consumer’s own decision.In addition,other relevant laws in China also stipulate the corresponding legal obligations of Internet operators to obtain and use consumer personal information.Therefore,data capture that seriously damages the rights of consumer’s personal information can be considered to violate business ethics.However,for the purpose of data circulation,the determination of serious damage rights of consumer personal information does not need to be based on the "informed consent" rules in the relevant laws as a criterion for judging,and the data capture which violate consumer’ willing is not unfair.When the data capture behavior that does not violate the relevant agreement,for the judgment of if data capture violates the principles of good faith and business ethics,it mainly checks whether the data capture is controlled within reasonable limits.The “substantial substitution” used by Chinese courts in relevant cases is consistent with the theory of “effective competition”and can be used as a criterion for the use of data beyond reasonable limits.Whether the data capture behavior constitutes a substantial substitute for the data controller’s related products or services,the court should make specific judgments based on the consumer’s information acquisition and usage habits.In cases where the situation is complicated and the amount of litigation is large,in order to avoid the subjective perception of the judge,the consumer’s test may be introduced,and the test result may be introduced as an important reference for judging whether the data capture behavior constitutes a “substantial substitution”.