| There are many studies and examples on the regulation of data capture behavior in China’s theoretical and practical circles.However,the corresponding behavior,that is,the restriction of data capture in the robots protocol,lacks relevant research on the regulation under the anti-unfair competition law.Whether the act belongs to unfair competition should also be demonstrated in accordance with Article 2 of the AntiUnfair Competition Law.However,as a general clause,this clause itself has certain ambiguity and is prone to different judgments in the same case.Therefore,it is necessary to reorganize the judgment path for the application of this clause.Starting from the case of unfair competition between Weibo and Toutiao’s robots protocol,this article focuses on the analysis of the second evaluation standard of business ethics and the evaluation standard of behavior effect in the Anti-Unfair Competition Law,with a view to making this article be effectively and accurately applied when judging the unfair competition behaviors related to the robots protocol.At the level of business ethics evaluation,first of all,it summarizes two commonly used methods of concrete identification of business ethics in judicial practice,and summarizes its scope of application and limitations.Then,according to the characteristics,the principles to be followed in the evaluation of applicable business ethics are summarized.First,business ethics must be tested before being recognized,including not violating the principle of good faith and not detrimental to the order of market competition;Second,when applying business ethics for evaluation,we should follow a prudent judicial attitude to avoid excessive subjective evaluation and improper interference in market competition.In the aspect of behavior effect evaluation,first of all,it should be clear that when the Anti-Unfair Competition Law evaluates the effect of competitive behavior,it mainly examines its impact on the following three interests: operator’s interests,consumer’s interests and market competition order.In practice,the above three interests often conflict.On the premise of clarifying the concept of competition,we should take the principle of proportionality as the analytical framework,and examine them from three levels of appropriateness,necessity and proportionality.If the competitive behavior does not meet the requirements of the above three levels,it can be judged that its damage to the above three interests is greater than its gain in terms of the behavior effect.When analyzing the restrictive behavior of robots protocol,we should pay special attention to the technical effectiveness and legal nature of robots protocol,and comprehensively consider the positive and negative effects of the data capture behavior it aims at. |
