Research On The Legality Of Internet Advertising Blocking

In the era of rapid development of technology and the economy,new types of competitive behaviors relying on the Internet are emerging endlessly.These types of behaviors are different from traditional competitive behaviors in terms of participants,situation and scope of influence.Therefore,it is very difficult to judge whether it is legal or not.Online video advertising blocked cases are a typical example of this.Scholars at home and abroad analyze it from different angles,such as competition law,tort law,intellectual property law,etc.,and try to give solutions.At present,China’s research focuses on the "balance of interests" perspective under competition law.But the following proble ms remain.First,the definition of advertising blocking behavior is generalized.The situation of blocking network video advertisement made by the main body of network economy participation is summed up as the same type.This approach ignores the differences in market competition or emphasis caused by the different main products and market roles of different network economy participants.At the same time,it also ignores the differences in technological innovation,neutrality and influence behind different shielding behaviors.Second,there is no positive response to the connection between different department laws on the identification of this kind of behavior.The current research in China takes the Anti-Unfair Competition Law as the main basis to determine the legality of advertising blocking.Although competition law plays an irreplaceable role in the regulation of commercial behaviors,the connection between different laws must be considered for the possible infringement of copyright in such cases.Third,no viable method has been found to determine whether the behavior is legal.At the present stage,the viewpoint focuses on the theory of "balance of interests",which holds that when measuring whether a certain competition behavior is legal or not,we should not only consider the damage to the operator’s interests,but also consider the impact of competitors’ competition behavior on consumers’ rights,as well as the effect on technological progress,industry development and market competition order.Although this theory not only responds to the development trend of competition law,but also comprehensively considers the interests of all parties,the author thinks it is difficult to put it into practice.This theory is too subjective as a judgment basis,and judging the impact of a business behavior,even on the basis of the economic research report is still a very difficult work.Therefore,it is still too early to take " balance of interests " as the end point of discussion.Therefore,this paper comprehensively sorted out the cases of advertising blocking in China,compared the cases in the United States and Germany,explored the similarities and differences among them,and classified the cases of advertising blocking into types.Classification is the basis for proper treatment.The author tries to distinguish the types of different cases from three aspects: the main subjects of advertisement blocking tools,the objects of blocking and the behavior of blocking.The author holds that article 48,paragraph 6,of the Copyright Law may be applicable under specific circumstances.Therefore,the author analyzes the relationship between the Anti-Unfair Competition Law and the Copyright Law.In addition,there are some cases that can be resolved under the existing provisions of the Anti-Unfair Competition Law,which should be addressed accordingly.The rest attempts to apply article 12,paragraph 4,of the Anti-Unfair Competition Law.The author thinks that the case analysis should be returned to the case itself and the judgment should be made on the basis of the influence of reality.Finally,when it is still impossible to get a definite conclusion after exhaust of the above means,the modesty of the Anti-Unfair Competition Law should be followed,and the competition behavior should be considered as legitimate.