| With the development of the Internet,the business model of "free contents & advertisements" has gradually become one of the main ways for video websites to make profits.However,many video website operators put in advertisements with low quality and large quantity.Blocking advertisements has become the real demand of consumers.Since the function of ad-blocking was born,it has caused panic and resentment of video websites,and a large number of cases about ad-blocking began to appear.However,the courts’ judgments in such cases are quite controversial.The purpose of this article is to summarize the problems existing in the judicial judgment through empirical analysis of China’s Internet ad-blocking cases.The fundamental reason for these problems lies in the lack of understanding of free competition and relevant legal basis.Therefore,the legal basis in determining the legitimacy of ad-blocking behavior should be studied and balance of interests in determining ad-blocking behavior should be further clarified.Competitors’ interests,consumers’ interests and social public interests should be separately considered and weighed.Whether the ad-blocking behavior constitutes unfair competition should be determined by the result of balance of interests.Specifically,as a new type of competitive behavior,the internet ad-blocking is usually judged by the traditional right infringement thinking applied in tort law.This logic of protecting competitors makes the court fall into the shackles of taking the competition relationship as a necessary premise,and excessively protects the business model of " free contents & advertisements ".In addition,this logic also causes the imbalance of interests consideration,which reflects the excessive protection of prior competitors,and the neglect of the interests of consumers and the public.Fundamentally speaking,in determining the ad-blocking behavior whether constituted unfair competition,the judicial judgment had no clear understanding of the intervening boundary in market competition,which leaded to the adoption of right infringement logic and the failure to protect the freedom of competition,presented as the infringement on the self-determination of individual acts and replacement of free market choice.However,the balance of interests conforms to the value and spirit of modern Anti-Unfair Competition Law.It advocates that the interests of competitors,consumers and public should be considered separately and weighed,which is conducive to fundamentally protect freedom of competition.Therefore,the point to solve the problem is to realize the transformation from the paradigm of the right infringement to the balance of interests.In accordance with the balance of interests,in determining the legitimacy of competitive behaviors,the realization of free competition requires full consideration of the interests of competitors,consumers and the public firstly.In the act of ad-blocking,the interests of competitors are mainly reflected in the prior competitors’ freedom of competition,and potential competitors’ freedom of competition.Consumers’ interests are mainly reflected in the realization of consumers’ right to know and the right to choose independently,thus making consumers’ decision-making freedom not distorted.Social public interests are reflected in the market competition order,mainly in whether to promote technological innovation and market vitality.Secondly,when the three interests have different orientations,the interests need to be weighed,and the most effective tool to weigh the interests is the Proportional Principle.When using Proportional Principle to identify the impropriety of ad-blocking behavior,it is necessary to judge according to the order of the principles of legitimacy of purpose,appropriateness,necessity and balance.Any behavior that does not meet the requirements of any sub-principle should be identified as improper. |
