On The Judicial Determination Of Browser Blocking Video Advertisement Unfair Competition Behavior

In the nearly ten years since the first case of video advertising blocking occurred in 2013,there have been several disputes over unfair competition between video operators and browser developers on video advertising blocking.As the current legislation has not clearly stipulated the illegality of video advertising blocking,Therefore,the academic and practical circles have not reached a consensus on whether the video advertisement screening constitutes unfair competition,and there are still large differences between the two sides.In the typical case of "Happy Sunshine Company v.Visys Unfair Competition Dispute",the court of first instance and the court of second instance reached completely opposite conclusions on whether Visys’ s blocking behavior constituted unfair competition,which triggered a series of discussions.At present,the general provisions of the Anti-Unfair Competition Law and the third article of its judicial interpretation have set up a basic recognition framework for the judgment of the legitimacy of this new type of case.The judgment of the legitimacy of Visys’ s blocking of video advertisements can be based on the two elements of "damaging the legitimate rights and interests of other operators" and "business ethics".In the aspect of "damage to the legitimate rights and interests of other operators",the business model of "advertising + free video" of Happy Sunshine Company does not violate the spirit of anti-law principle and prohibition provisions,and it is closely related to the total social welfare,with legal protection of interests;However,the blocking behavior of Vixis Company has caused substantial damage to the "advertising + free video" business model of Happy Sunshine Company and damaged the legitimate rights and interests of Happy Sunshine Company.In terms of "business ethics",Visys’ shielding behavior violates industry rules and the principle of technology neutrality,which is not conducive to the realization of consumers’ long-term interests.At the same time,the social welfare generated by Visys is not enough to offset the damage results brought by Visys,which is easy to disrupt the market competition order,and ultimately violates business ethics.Therefore,it is determined that the blocking behavior of Visys Company constitutes unfair competition.Finally,in terms of the specific identification of the behavior of blocking video advertisements,the "small cover clause" is not enough to regulate the behavior of blocking video advertisements,and the identification of the behavior of blocking video advertisements needs to go back to the general clause to seek the regulation path.Meanwhile,the right protection infringement judgment path presented by some current judicial judgments is not extended.Some judges should timely implement the behavior regulation path of multiple interest measurement.