| Data is the oil of today’s era.With the development of digital economy,and data as a new factor of production in our country,the market value of data is becoming more and more obvious,and shows a growing trend.What follows is the scramble and competition for the data market by commercial subjects.Obtaining mass data collected by competitors by data scrapping has become a common means of many commercial entities.Under such circumstances,disputes arising from unauthorized data scraping or scraping without justification are rife with incidents.In current judicial practice,data controllers usually sue data scrapers for unfair competition disputes in accordance with the relevant provisions of the Anti-unfair Competition Law of PRC.However,in observing the trials of courts on unfair competition dispute cases involving data scraping,there are the following prominent phenomena:(a)even if the type of data scraped and the method used are same with each other,the application of legal bases is different,which mainly refers to the interpretation and application of the Article 12 and Article 2 of the currently implemented Anti-unfair Competition Law of PRC;(b)when applying the Article 2 of currently implemented Anti-unfair Competition Law of PRC to a specific case,courts tend to fall into a "broad moralization" evaluation,directly deeming the data scraper’s behavior as a free rider in violation of the principle of business ethics and good faith,while possibly ignoring the subjective intent of the data scraper,and the impact of the data scraping behavior on factors such as consumer interests and public interests,etc.Because different courts adopt different legal bases and considerations when evaluating the legitimacy of data scraping behavior,the cases with same fact may be given different judgments,which may further affect the credibility of the judiciary and the development of the Internet industry.In order to solve the above-mentioned problems in the determination of the legitimacy of data scraping in the context of disputes over unfair data scraping,this article attempts to analyze the current situation and aspects to be improved of the regulation of data scraping under the Anti-unfair Competition Law in four chapters,based on a combination of academic research,judicial cases,and nutrients absorbed from the legislative and judicial experiences of certain countries regarding data scraping issues.Finally,this article puts forward some suggestions for improving the methods of determining the legitimacy of data scraping under the Anti-unfair Competition Law.After research and analysis,this article believes that suggestions for improving the determination of the legitimacy of data scraping behavior can be provided from two dimensions-"legislative" and "judicial".Firstly,for the aspect of "legislative",we may attempt to draw on the judicial experience summed up from China’s data scraping cases,to establish a sub-clause under the Article 12 of currently implemented Anti-unfair Competition Law of PRC to regulate unfair competition conduct of data scraping,in order to clarify the applicable law basis.Secondly,for the aspect of "judicial ",before the clause regarding data scraping being incorporated into the Anti-unfair Competition Law,in judicial practice,the Article 2 of Anti-unfair Competition Law may still be cited for the determination of unfair competition dispute cases involving data scraping.In order to avoid falling into the trap of "broad moralization" evaluation,it is of great significance to standardize the application of the "business ethics" standard under the Article 2 of Anti-unfair Competition Law.This article also proposes that an interest measuring method may be introduced,and the "Proportionality Principle" may be used as an interest measuring tool,as a way to remedy the past defects of business ethics standards.In these ways,we hope to provide certain assistance to the judges in their determination of the legitimacy of individual cases involving unfair data scraping in applying Anti-unfair Competition Law. |
