Analysis On Use Of Big Data By Network Platform From Competition Law Perspective

The thesis takes Beijing Weimeng Network Technology Co.,LTD v.Beijing Taoyoutianxia Technology Co.,LTD.(hereinafter referred to as "Sina Weibo v.Maimai")as an example,combined with other data competition cases,making analysis on big data grasping and competition behavior of the network platform,from the perspective of the anti-unfair competition law.Sina Weibo v.Maimai focuses on whether the use of big data without permission constitutes unfair competition,etc.The court holds that,Maimai's behavior of grasping and using data without permission is lack of legality and legitimacy,and violates triple authorization principle of "user authorization + platform authorization +user authorization",and at the same time violates the principle of good faith and Internet business ethics,injuring the fair and reasonable competition order and the interest of both competitors and consumers,therefore,the behavior constitutes unfair competition.The thesis discusses on the way to define unfair competition in data competition.Firstly,the thesis discusses the premise of data competition,i.e.,whether data can be used as the interests of network platform operators to be protected by anti-unfair competition law.After denying the effectiveness of traditional civil law approaches such as tort law and trade secret approach in regulating data competition,the thesis proposes that the anti-unfair competition law is applicable to the situation where the competition object can be rights and interests.Therefore,the general provisions of the anti-unfair competition law can be invoked to regulate the data competition behavior.Data collection with the consent of users and anonymization in ahead can reduce or eliminate the infringement of users' rights caused by the use of big data.It can be seen that big data can be used as the object of competition.The act of unfair competition based on data violates the market competition order protected by the anti-unfair competition law,and it is reasonable for network data to be regulated as the object of anti-unfair competition law.Secondly,combined with the triple authorization principle,the thesis discusses the premise and boundary of the platform data using.The premise of using the data of the network platform is to obtain the specific and explicit consent of the user and the original platform,and make sure to use,license and transfer the data in strict accordance with the specific direction and time range of authorization.Since user authorization is the beginning of all the rights and interests of the platform,and the data collection behavior of the platform endows the data with much more value than simple addition,so it is difficult for user and platform authorization to replace each other,but the second user authorization can be properly combined with the first one.The thesis holds that the anti-unfair competition law should protect the objects in a certain order,and when there is a contradiction between the objects,the fair and effective market competition order should be first protected.Thirdly,the thesis analyzes on the way to define whether the behavior of operators is unfair competition in data competition.This part cited the views of the courts in hi Q Lab v.Linked In and Ganji v.Baixing,and discussed the contradiction between data controller protection and data flow.The protection of operators is built on the basis of creating a fair and effective market competition order.The protection of original data controllers or third-party platforms cannot be blindly emphasized,but a balance should be found between the protection of data controllers and the protection of data flow.The thesis analyzes from three objects protected by the anti-unfair competition law,in order to protect healthy and reasonable market competition order,putting forward the legitimacy of competitor behavior from the business ethics and integrity,compliance with the principle of process of discretion of the judge in the case.Finally,this part conceives the effective competition mode of Internet market data.In exceptional cases,third-party platforms can capture data on the premise of complying with the principle of non-public necessity and non-interference.Raw data controller for the exclusive use of data should be at the expense of the public after the prescribed,the protection of the patent law can be appropriately reference model,build a data using model with three steps of "collect data-exclusive use-overdue open" as the core,build "collect data-exclusive use-overdue open" three-step as the core data using the model,the specific length and transition period set by the court according to the nature of the data and value discretion.When conducting transactions with other subjects,data controllers shall accept the FRAND principle and conduct fair and reasonable transactions with other operators under the same conditions,and shall not impose other conditions on some platforms or refuse to conduct transactions with them.