Analysis Of Anti Monopoly Law On Refusal To Data Open

In the era of digital economy,big data has seemingly become an important resource for data driven companies to compete for.The “data competition”among companies is becoming increasingly fierce,with an increasing trend of legal issues related to data.In the process of data use,the opening of data should follow the autonomy of private law and the freedom of contract.Data controllers can freely choose whether to open and freely decide who to open.However,when the data controller takes the dominant position in the market,the refusal to open the data may lead to serious consequences of restricting competition,so it is subject to the Antimonopoly law examination to seek a balance between freedom of contract and fair competition.Based on this,this article will combine typical cases appearing in practice such as“hi Q v.Linked In”to discuss whether a data-holding company with a dominant market position can refuse to open its specific data resources to competitors or a third party,and whether the refusal of data opening constitutes is an abuse of its dominant market position.This behavior will fall into the scope of regulation of article 17(1)item 3 of the Antimonopoly law,following the illegal analysis thinking of “dominant position—abuse behavior—excluded conditions”.It will be regulated by Antimonopoly law,when dominant position and abuse both exist with no valid reason to explain the refusal to open the data.Regarding the analysis of refusal to open the data according to Anti monopoly Law,this article starts with the following four parts:Part I: The reason for Anti monopoly law to intervention in refusal of data open.The refusal to open the data means that the data holders who have a dominant market position refuse to open their specific data resources to competitors or third parties.The necessity of Anti monopoly law intervention is to exert the value of data use and to promote the share of data;the legitimacy of the intervention is determined by the legislative purpose and regulatory system of the Anti monopoly law.Part II: Determination of market dominance of data controllers.The prerequisite for Anti monopoly regulations to reject data openness is to determine if the data controllers have the market dominance,including to define data-related markets and to confirm the dominance of data controllers.It is still difficult to define the big data related market separately when defining the data related market,which needs to be defined in conjunction with the specific market involved in the case;When determining the dominant position of a data controller,in addition to considering market share factors,the main analysis is whether big data can bring market power and constitute market entry barriers.Part III: Competitive damage assessment for refusal to data open.It is not illegal for a data controller to have a dominant market position,so further judgement is needed to abolish this position.The rejection of data openness abuse of market dominance has caused damage to competition.Firstly it will cause damage in setting market entry barriers and extending monopoly power to damage market competition mechanisms,secondly it may lead to damaging consumer interests of choice freedom,price benefits and data security with also damage to the innovation of data market.Part IV: Justification of refusal to data open.The principle of reasonableness applies to the illegal analysis of refusal to data open.If the data controller has a valid reason,it will not be deemed to constitute an illegal act.In the rejection of opening data behavior,the economic efficiency defense is mainly judged based on whether the rejection affects production efficiency,allocation efficiency and innovation efficiency;defense of privacy protection based on whether the data refused to be open belongs to privacy and whether privacy protection is included in the Anti monopoly law analysis;and defense of business secret based on whether the data is confidential,valuable,and confidential.