Research On The Judicial Determinaton Of The Justification Of Advertising Filtering

At the same time as the rapid development of the Internet economy,a variety of new types of competition have emerged,and there is no clear legal regulation on the application.This article focuses on the analysis of the legitimacy of advertising filtering behavior.The structure of the article includes four parts.The first chapter briefly introduces the current main types of Internet advertising,the form of advertising filtering and the disputes over the application of laws.The amount of Internet advertising has also surged.Due to the uneven quality of advertising,it has caused harassment and energy waste to consumers,so an advertising filtering function that meets consumer needs has appeared.In judicial practice,there are more disputes mainly due to video website operators v.Advertising filtering operators,so the paper also analyzes the justification of filtering video website advertising behaviors.The second chapter focuses on the refereeing thoughts when advertizing ad filtering disputes.The court first demonstrated in a broad sense that although video website operators and advertising filtering software operators are not in the same industry,they still have a competitive relationship in a broad sense;Secondly,it is believed that the business model of "advertising + free video playback" has almost developed into the practice of the video website industry.This business model does not violate the prohibition of the law,so the competitive benefits generated by this model should be protected by law.Then the behavior of the advertising filtering software operator should apply Article 2 of the Anti-Unfair Competition Law.The advertising filtering behavior violates the principles of good faith and business ethics,and damages the plaintiff's interests;In the trial of similar cases,the court also established the "non-public interest non-intervention principle",arguing that in market competition,operators must not interfere in the normal operations of others unless the public interestis necessary;In the end,the court held that the long-term consideration of advertising filtering behavior would endanger the survival of video website operators and ultimately not protect the interests of consumers.Therefore,advertising filtering behavior is unjustifiable.The court's decision path and the determination of the unilateral operator's interests as the supremacy have caused many questions in theory.The paper points out the problems in judicial determination: First,the interests protected by modern anti-unfair competition law are more comprehensive.Therefore,when judging the unfairness of competitive behaviors,we still insist on the premise of competitive relationships and may not be able to cope with more new types of competitive behaviors.The second is that the court lacked a process of reapplying the abstract principle when it believed that the defendant's behavior violated the principles of good faith and business ethics,and the argument was vague.Third,the business model and advertising revenue are general competitive interests,and are clearly different from rights.Therefore,the previously established "ad + free video" business model should not be protected of course,absolutely.Because advertising filtering caused losses to the plaintiff,the behavior was deemed to be improper,not only did not recognize the idea of harming neutrality,but also fell into the trap of infringement of rights.The fourth is to analyze the principle of non-necessary non-intervention.This principle hopes for peaceful coexistence between competitors.In fact,it adheres to a static view of competition.This is not in line with the market competition mechanism,and it is reasonable to use “public interest” as an interference behavior The reason is to inhibit competitors' technological innovation and freedom of competition.The third chapter introduces the consideration factors of Germany and the United States in determining the validity of advertising filtering behavior,and provides reference for China's judicial determination.There is a certain difference between the German advertising filtering dispute case and China's practice.For example,in terms of the actor's identity,the German plaintiff is mainly a website operator such as news and entertainment information,and the defendant not only has a "blacklist model" for filtering ads,but also a "whitelist model" that advertisers can join to pay.The German court has demonstrated whether the advertising filtering behavior is a transaction,whether it constitutes a targeted obstruction and an offensive transaction,and whether it violates the general terms.In the end,the plaintiff did not believe that the advertising filtering behavior could not survive and the competition was not severely restricted.They believe that advertising filtering does not constitute unfair competition and should be left to the market to resolve.The court should be cautious.US courts have exempted ad filtering software operators from the perspective of protecting users from unwantedadvertising harassment,using the safe harbor principle of the Communications Regulations Act and technology neutrality.The fourth chapter analyzes the factors that China should consider when dealing with similar ad filtering dispute cases in the light of China 's actual situation and the useful experience of Germany and the United States.The author believes that the nature and positioning of anti-unfair competition law need to be clarified first.Anti-unfair competition law is related to tort law,but it also has its own unique mission.2.Protection of consumer interests.Therefore,when judging the legitimacy of the behavior,it is necessary to follow the thinking of balance of interests.It is necessary to protect the interests of competitors in free competition,as well as the interests of consumers' free choice and decision-making,and at the same time,pay attention to social public interests.Finally,the principle of proportionality is used as a specific guide to analyze whether the filtering behavior of advertisements meets the principles of appropriateness,least damage,and proportionality in turn.The thesis holds that the judge should be cautious and neutral in the process of determining the legitimacy of the act,realize the balance of interests of multiple parties,respect technological innovation and freedom of competition,and leave more innovation space for future market development.