Research On The Regulation Of Data Monopoly By Antitrust Law

The rapid development of the Internet has subverted the human life style,and the related data-driven enterprises are also constantly changing.From the perspective of maintaining the reasonable and effective operation of the economic market and fair competition,the data monopoly conduct involved in the process of competition by enterprises by using the data they have is worth studying.Both the Provisions on the Prohibition of Abuse of Market Dominance(Draft for Comment)promulgated by the State Administration for Market Regulation on January 30,2019 and the Draft Revision of the Anti-monopoly Law(Draft for Public Comment)promulgated by the State Administration for Market Regulation on January 2,2020 pay attention to data monopoly conduct.However,the foregoing two regulations contain only general provisions on the data monopoly regarding the digital economy and have not further specified the same.Therefore,this circular will specifically analyze the specific issues concerning the regulation of the Anti-monopoly Law,including the current situation and existing problems of the Anti-monopoly Law of the People's Republic of China governing data monopoly conduct and the practice and exploration of the anti-monopoly law in countries and regions outside the territory with regard to data monopoly conduct,and give suggestions on the issues of regulating data monopoly under the Anti-monopoly Law in China.In this paper,the first chapter mainly discusses the status quo of data utilization,the characteristics of digital economy market,and the resulting data monopoly.The formation of data monopoly is inseparable from the unique role of data itself and the characteristics of digital economy.The formation of data monopoly may have the corresponding anti-competition effect.Therefore,it is necessary to regulate and rectify the data monopoly behavior reasonably so as to reduce its adverse impact on the market and ensure the role of market in the allocation of resources.Chapter ?,? and ? of this Circular discuss the problems of China's current Anti-monopoly Law in regulating data monopoly from three aspects: the difficulty in defining a relevant market for data monopoly,the lack of basis for identifying a dominant position in the digital economy market,and the inadaptability of turnover to data monopoly.At the same time,the experience of other countries and organizations in regulating data monopoly shall be studied,and experience that is applicable to China shall be summarized,including taking data as the cost of data-driven enterprises and one of the considerations for users' transactions,blurring the boundary of the data-related market and mainly focusing on the anti-competition effect,focusing on the characteristics of dynamic competition in the digital economy market,new abuse of dominant position in the market,and inconsistency between the turnover and the number of users.At the same time,it analyzes the theoretical and practical significance for our country to learn from the experience of data monopoly.Chapter ? of this Chapter puts forward relevant suggestions to the legislative organs and law enforcement authorities of the Anti-monopoly Law of the PRC in accordance with the practical experience of foreign countries.First of all,the basic principle of data monopoly,that is,the principle of reasonableness and the principle of necessary facilities,shall be clearly defined.In defining the relevant market,data shall be treated as the consideration for the provision of services by data-driven enterprises,attention shall be paid to the lock-in effect of digital economy and network effect on the definition of the market,and boundaries of the relevant market may be blurred at discretion;meanwhile,for data-driven enterprises with definite and clear business models,business model definition method may be used.In identifying the dominant market position,dynamic competition,which is the salient feature,shall be taken into account as well as various business factors of the data-driven enterprises.Abuse of dominant market position can be divided into two categories: acts to eliminate or restrict competition and acts that harm the interests of consumers.Specifically,acts to eliminate or restrict competition include user lock-up,cross subsidies,the setting of technical barriers,and acts that harm the interests of consumers include acts to force hitchhiking and personalized pricing.Similarly,in reviewing the concentrations between undertakings,the following factors shall also be taken into account: the data possessed or accessed by the enterprise,as well as the benefits of consumers and the impact on innovation capacity and existing market structure,In addition,for the procedure of prior declaration,the author believes that the law enforcement agency shall mainly conduct prior declaration,supplemented by interim and real-time review,and carry out the review throughout the whole process,and establish a punishment mechanism for the provision of false information by business operators.The anti-monopoly law of our country has been implemented for several decades.In the past ten years,the economic structure and market competition mode have changed gradually.The digital economy based on the Internet has become one of the pillar industries of the national economy.At this time,it is necessary to discuss the impact of data resources and digital economy on the Anti-monopoly Law,because it is the logical starting point for all the regulations of data monopolies.Perfecting the competition law system and optimizing the regulation of competition is one of the objectives of the Anti-Monopoly Law in the face of digital market economy.Based on the analysis of the importance of data resources and the formation of data monopoly,this paper puts forward some suggestions on the regulation of data monopoly in our country's Antimonopoly Law by understanding the exploration of data monopoly in foreign countries,regions and organizations,so as to do our utmost to do a little.