On Judicial Dilemma And Getting Rid Of Unfair Competition Cases In Data Capture

For enterprise operators who provide products or services based on the Internet,user data has become an important factor of production,which can enhance their competitive advantage and bring huge economic benefits.The data competition launched by enterprises to strive for user resources and improve business value can help guide enterprises’ subsequent business decisions and investment directions,but some data competition methods may be suspected to constitute unfair competition,such as unauthorized data capture.Data capture was first used in search engines,and then widely used in Internet business models such as digital content,e-commerce,Internet finance,etc.At the same time,it has been widely infiltrated in traditional industries.At the same time,unfair competition disputes about data capture are coming one after another.There are four kinds of disputes: data grabber directly captures data without the consent of users and data controllers;data grabber obtains the consent of users but does not obtain the consent of data controllers;data grabber obtains the informed consent of users and data controllers,but data grabber over-collects data beyond the previous constraints of both parties;and data grabber obtains the consent of users and data controllers,but data controllers advocate that data grabbers use data improperly.There are also some typical cases in western countries in this respect.This paper focuses on the relevant judicial cases in the United States as the breakthrough point to analyze the data unfair competition disputes among enterprises,in which the data unfair acquisition behavior mainly includes the following two forms.The first form is the data unfair acquisition behavior based on the "theft theory" regulation in the early news field,and the other form is the current popular data unfair acquisition behavior based on the "web crawler" field.For many data capture disputes in our country’s practice,there are disputes in the court’s determination of data legal attribute,data rights distribution and data capture dispute responsibility.In terms of data legal attribute,there are different opinions in academic circles,including "data property right theory","data creditor’s right theory","new data property right theory","data intellectual property right theory" and "data intangible property right theory".In the court’s view,the legal attribute of user data can only be regarded as a kind of legal right to be protected,and it can be seen from the network service agreement signed between enterprises and users,the operating cost of enterprises to obtain data and the balance of interests in combination with the characteristics of the information age When the law has not yet given an answer,the court often chooses flexible ways to avoid the problem of how to determine the ownership,that is,to protect the legitimate rights and interests of relevant stakeholders from the perspective of property protection.However,in the final determination of responsibility,in most cases,data capture behavior will be regarded as an unfair competition behavior,which tends to protect the interests of operators.The attention and attention to the interests of consumers and the public are obviously lacking,and the interests of cross-border operators are rarely mentioned.The reason for the above problems may be that Article 12 of Anti-Unfair Competition Law can not be applied to the data capture behavior,which leads to the implementation of the legal basis to the principle provisions with wide applicability,that is,the general clauses,the applicable standards are vague,and the judges have great discretion.Secondly,the judge may not comprehensively consider the relevant factors in the judgment,whether the data controller’s acquisition and utilization of data is legal and compliant,whether it exceeds the reasonable use limit and has produced substantial substitution for the data controller,whether the data controller has invested a lot of cost to collect data and suffered great damage due to the grabbing behavior,and whether it has adverse effects on the market competition order,etc.Admittedly,the relevant legal liability system is still dominated by administrative liability,and civil liability needs to be improved urgently,especially the lack of perfect legal provisions and liability system.Although Article 17 of the Anti-Unfair Competition Law describes the damages for data capture,it does not clearly define how to compensate for damages,and then the legitimate rights and interests of the injured party cannot be effectively protected.It is suggested to introduce relevant judicial interpretations for users’ data capturing unfair competition behavior,correct the judgment thinking of over-reliance on general clauses in current judicial practice,and build more detailed conditions for the application of Article 2;At present,it is pointed out that whether data grabbing behavior is unfair competition behavior should be based on the analysis of multiple interests.By optimizing the "Internet Special Articles",the damage compensation system and legal liability system should be improved,and the concrete and feasible calculation standard of damage compensation should be designed to better realize the regulation of data grabbing behavior against unfair competition law.