On Traffic Hijacking Under Anti-Unfair Competition Law

The implementation of "top-notch M ＆ a" and "top-notch M ＆ a" will not only promote the economic development of enterprises,but also bring great losses to the normal development of the market,such as the implementation of "top-notch M ＆ a" and "top-notch M ＆ a",but also bring great losses to the market.Although the position and role of network information technology in the overall situation of China’s economic and social development are becoming more and more prominent,it has also brought many problems: disorderly expansion of capital,monopoly and unfair competition are becoming more and more prominent.In particular,some large Internet platforms have rapidly grown into platform giant enterprises with the advantages of data and technology,excluding and limiting market competition,forming a "winner takes all" effect,Market order that affects the fair competition of platform economy.For traffic hijacking,although "using technical means to implement traffic hijacking" and "interfering with competitors’ products or services by technical means" have been listed as unfair competition acts in the Internet field to be regulated,there are still various technical and detailed problems in the application of law,and there are still difficulties in the application of the general provisions of the anti unfair competition law and the special provisions of the Internet.This is also the reason why the anti-monopoly guide in the field of platform economy,the provisions on the prohibition of unfair competition on the Internet（Draft for comments）and the interpretation of several issues of the anti unfair competition law have been released successively since this year.The so-called traffic hijacking is a kind of behavior that damages other people’s network traffic by robbing other people’s users and increasing the number of visitors to their own website without the permission of users through technology or other methods.This approach will not only make the hijacked operators lose the channels of business dealings with users,lose a lot of data and cause huge economic losses,but also damage the majority of Internet users’ right to know and free choice,and disrupt the fair competition order of the whole market.In recent years,traffic hijacking cases have been increasing,which has been debated in the theoretical and practical circles.The root cause is the theoretical differences on the behavior subject,behavior mode and result identification of traffic hijacking.Starting from the theoretical point of view and the experience in judicial practice,combined with the methods of case analysis,literature analysis and system research,and according to the typical cases of traffic hijacking in China,this paper analyzes the problems existing in traffic hijacking in China,and puts forward corresponding improvement suggestions.Firstly,it discusses the constituent elements of traffic hijacking,including subject,subjective,object and objective,explains how to identify,and analyzes the main defense reasons put forward by the defendant in judicial practice,such as technological innovation.Secondly,sort out the legal application problems of traffic hijacking,clarify the relationship between principled clauses and Internet articles and the rules of legal application,and clarify the judicial status and problems of the existing damage compensation system.Finally,according to the problems mentioned in the article,some suggestions are put forward,including clarifying the applicable rules of Internet articles,perfecting the pre litigation injunction system,damage compensation system and so on.