| As a new type of unfair competition,online advertising blocking behavior,before the amendment of the Anti-Unfair Competition Law,adopts the general provisions of the principle of good faith and business ethics to determine its unfairness.The application of general terms makes the lack of uniform standards in the evaluation of online advertising blocking behaviors,resulting in difficulties for the courts in the trial process,resulting in unbalanced interests.In the newly amended Anti-Unfair Competition Law in 2017,the newly added Article 12 regards consumer rights as the object of damage.At the same time,foreign judicial practice and China have different ways of identification.Foreign judicial practice focuses on protecting the interests of consumers,but at the same time guarantees the orderly competition of competitors in the market and allows the market to regulate the competition relationship as much as possible.The country focuses on protecting the interests of video site operators and protecting their business models.But it ignores consumers’ independent choice in market competition and blocks the technological innovation of software providers.After the promulgation of the new law,there were different opinions on this issue,but it was finally determined to be unfair competition.In judicial practice,although many efforts have been made to judge the inconsistency of the standards for the legitimacy of online advertising blocking behavior,it has not yet formed a uniform,applicable standard that is scientific,reasonable and mature.In view of the qualitative controversy in the theory and practice of online advertising blocking behavior,the article studies from an empirical perspective,analyzes classic cases,the case of "One Company v.Jinshan Company",and summarizes the focus of disputes from competition relations,business ethics,user rights,and public interests.It cannot be a reason for illegal obstruction.Four aspects analyze whether the judicial organ’s blocking of online advertising is a qualitative issue of unfair competition.Based on the existing laws in China,the problems existing in the regulation of online advertising shielding behaviors are analyzed.From the analysis of the unclear legal characterization,insufficient administrative supervision,industry self-discipline and legal liability setting,we understand the shortcomings in regulating online advertising shielding behaviors.At the same time,we study the representative countries of the civil law system and the Anglo-American law system,the United States and Germany,from which we can learn how the two countries define online advertising blocking behavior and how to stabilize the development of the market.Learn from the qualitative thinking about the blocking behavior of online advertising,and learn from it that both countries focus on protecting consumers,and the judiciary should not overly interfere with the market.Combined with the current economic situation in China and the laws of market development,guidance from the aspects of legal characterization,administrative supervision,and industry selfdiscipline can play a reasonable role in guiding the behavior of operators,and serve as a warning,and encourage operators to innovate independently.Conform to market development. |
