Study On The Legitimacy Boundary Of Data Capture

Data is the basic form of the Internet,but also the link connecting the network operators and the transformation and adjustment of Internet information media.With the rise of Internet technology and the expansion of its application scope,business platforms that use the Internet to participate in the operation pay more and more attention to data sharing,and will also use applications to extract valuable information from other websites,that is,data capture.At the same time,the risk of data leakage due to scraping behavior continues to expand.In order to benefit quickly,malicious data capture tends to be frequent,which will not only cause the infringement of data rights,but also destroy the competition order of the industry.In the face of the social problem of a large amount of data being illegally captured,we should improve the relevant legislation of data capture and comprehensively regulate the illegal data capture.Starting from the existing legal system in China,the legal provisions related to data are basically concentrated in the civil Code and the Anti-Unfair Competition Law.Although the criminal law is involved in data crimes,the launch of the criminal law is supplementary and guaranteed.Only when the trial subject can confirm according to the civil laws and regulations that the data capture behavior itself has been seriously illegal.Within the existing legal system,the legislators do not specify the nature and ownership of the data.In view of the protection of rights,China follows the evaluation paradigm of rights,that is,to first clarify the attribute of rights,and then set up the legislative logic of relief means.Once the nature of the right is not clear,the right is easy to lose its legal source,the type of infringement of legal interests cannot be determined,and more problems will be exposed in the choice of applicable law and remedy means.In judicial practice,the unclear legal nature of the law extends the problem of which department law to regulate illegal data capture.Scholars who hold different views on determining data rights are consistent with the ownership of data rights,and there are also views that bypass the idea of determining data rights and apply the data capture behavior according to competitive regulations according to the trial practice.In view of the legislative status and the role of various departmental laws in judicial practice,this view is the most reasonable.In the competition law,there are more comprehensive regulations of illegal data capture,including the punishment and relief of infringing trade secrets and the provisions for the infringement of data.In different application scenarios,the objects of data capture are different,so the legitimacy boundary of grasping behavior is also different.When judging whether the legality of the capture of the public data,trade secrets and other data,it shall extract the reasonable standard from the provisions of the law.In the competition law,the provisions of the infringement of trade secrets are higher,and the guarantee provisions are less and less clear than the standards of legitimacy,which means that the discretion of the trial subject can easily lead to different trial results in the litigation-related behavior under the same application scenarios.If the judicial subjects do not form a unified opinion on the legitimate boundary of data capture,the illegal data capture cannot be comprehensively restricted and rectified,the legal data capture is easy to be overcorrected,the data flow is suppressed,and the data loses its activity.To this end,we should start from Chinese legal system,refine the internal legitimate and illegal boundary of data capture behavior in legislation,and strive to get comprehensive punishment for malicious data capture,prevent similar behavior from happening again and flooding,and play a positive role in maintaining the order of market competition and promoting the development of economy.