Research On The Construction Of Essential Data Doctrine Under Platform Economic Data Governance

Essential facilities doctrine originated from the "Railway Terminal Case" of the United States in 1912,which required that when competitors could not duplicate the facilities and the facilities were essential for competition,the owners of the facilities should open the facilities fairly to maintain effective market competition,aiming at regulating the refusal of transactions that should be regulated by the anti-monopoly law.On the basis of this principle,monopoly regulation has formed another path besides the idea of "competition damage"-essential facilitates doctrine.In2010,the former State Administration for Industry and Commerce issued the Provisions of the Administration for Industry and Commerce on Prohibiting the Abuse of Market Dominant Position,which formally incorporated essential facilitates doctrine into China’s anti-monopoly legal system.Subsequently,Provisions on Prohibiting the Abuse of Intellectual Property Rights to Eliminate and Limit Competition,Interim Provisions on Prohibiting the Abuse of Market Dominant Position,Guidelines on Antitrust in the Field of Platform Economy were successively issued,and the academic community’s enthusiasm for the digital application of essential facilitates doctrine was also unprecedented.In addition,with the birth and prosperity of the platform economy,the advantages of monopoly platforms have become prominent,and they are committed to building their own platform ecosystem.The battle for data has begun,and data barriers have quietly emerged.So far,the behavior of refusing to trade has evolved into a data form-data refusing to trade.In the face of data refusal to trade behavior,there are significant limitations in China’s existing monopoly regulation ideas.Firstly,there is a regulatory requirement for data refusal trading behavior,but it is more unpredictable than traditional monopolistic behavior.Data refusal to trade behavior arises from the platform economy and is a product of the attention economy.The existing monopoly regulatory tools rely too heavily on price competition,making it difficult to accurately identify the monopoly intent behind the behavior,resulting in high error costs.Secondly,the concept of "competitive damage" lacks specificity,and in contrast,essential data doctrine has a relative advantage.As a new type of monopolistic behavior,data refusal to trade originates from the platform economy and has unique characteristics that are different from traditional economies.As a universal monopolistic regulation approach,the "competition damage" approach is difficult to balance the unique characteristics of data refusal to trade behavior.In contrast,the digitization of essential data doctrine as a essential facility not only adapts to the platform economy,but also flexibly responds to digital refusal to trade behavior.Based on this,it is essential to establish essential data doctrine,refine the analysis ideas and identification factors for regulating data refusal trading behavior,and improve the scientific,targeted,and effective supervision of it.Firstly,clarify the concept and connotation of essential data doctrine.essential data doctrine should be applied at the data level,that is,data that meets necessity,non replicability,and non substitutability should constitute essential data,and the social value of essential data should be enhanced through the application of the principle.Second,clarify the positioning of essential data doctrine,and make clear that essential data doctrine in the context of platform data governance should follow the reasonable principle analysis model and economic efficiency objectives in its application,which should run through the whole process of the application of essential data doctrine.Thirdly,establish procedures and entity rules for essential facilitates doctrine.On the one hand,design program rules.Clarify the application and review of the initiation and termination procedures,and strengthen the procedural guarantees in the application of the essential data principle.On the other hand,designing entity rules.In terms of applicable conditions,taking into account the analysis framework of essential facilitates doctrine under the traditional economic model and the characteristics of the platform economy,starting from the actual control and refusal of the monopolist to trade "essential data",the monopolistic intention and irrationality of refusing to trade,comprehensively evaluating the obstructive effect of refusing to trade on new products under the platform ecosystem,and comprehensively determining whether the conditions for applying essential data doctrine are actually met.In the case of defense,the owner of essential data should be granted the right to defend based on legitimate reasons,avoiding the generalization of essential data doctrine.In the face of data refusal to trade,China’s existing monopoly regulation ideas have great limitations.First,there is a regulatory need for data refusal trading,but it is more unpredictable than traditional monopoly behavior.Data refusal to trade originates from the platform economy and is the product of the attention economy.The existing monopoly regulation tools are too dependent on price competition,which makes it difficult to accurately identify the monopoly intent behind the behavior,and the error cost is high.Second,the idea of "competitive damage" lacks pertinence,while essential data doctrine has comparative advantages.As a new type of monopoly behavior,data refusal to trade is born out of the platform economy and has different characteristics from the traditional economy.As a universal monopoly regulation idea,the "competition damage" idea is difficult to take into account the particularity of data refusal to trade behavior.However,the digitalization of essential data doctrine as essential facilitates doctrine not only adapts to the platform economy,but also can flexibly cope with the refusal of digital transactions.Based on this,it is essential to establish essential data doctrine,refine the analysis thinking and identification factors of regulating data refusal to trade,and improve the scientific,targeted and effective supervision.First,clarify the concept and connotation of essential data doctrine.Essential data doctrine should be applied at the data level,that is,the data that meets the necessity of stability,irreproducibility and irreplaceability constitute essential data,and the social value of essential data should be improved through the application of the principle.Second,clarify the principles that should be followed in the application of essential data doctrine,clarify the rationality objectives and economic efficiency objectives that should be followed in the trial of essential data doctrine under the background of platform data governance,and run them through the whole process of the application of essential data doctrine.Third,establish the procedural and substantive rules for the application system of essential data doctrine.On the one hand,design procedure rules.Clarify the application and review of starting and ending procedures,and strengthen the procedural guarantee in the application of essential data doctrine.On the other hand,design entity rules.In terms of application conditions,we should take into account the analysis framework of essential facilitates doctrine under the traditional economic model and the characteristics of the platform economy,start with the monopolist’s actual control and refusal of the "essential data" of the transaction,the monopoly intention and irrationality of the refusal of the transaction,comprehensively evaluate the blocking effect of the refusal of the transaction on the new products under the platform ecosystem,and comprehensively judge whether the case has the conditions for applying essential data doctrine.In the case of defense,the owner of essential data should be given the right to defend on the basis of legitimate reasons to avoid the generalization of essential data doctrine.