Research On The Regulation Of Anti-unfair Competition Law For Commercial Data Capture

In the era of digital economy,data has become an important resource for the development of enterprises.However,in the fierce competition in the Internet market,there are some improper commercial data capture behaviors,which damage the legitimate interests of operators and consumers and the fair market order.At present,the provision of the data property right ownership in the law of our country is not clear,how to protect the data property right has been divided into several opinions.The views of domestic scholars can be divided into power protection and behavior regulation.Empowerment protection can be subdivided into intellectual property protection,contract law protection,tort law protection,data property protection and so on.Behavioral regulation mainly uses the Anti-Unfair Competition Law to protect data property rights.However,the scope of protection advocated by the theory of intellectual property protection is very limited to regulate the behavior of data capture by the provisions of compilation works in the Copyright Law,and the setting of adjacent rights is not a feasible protection path,and this protection mode still needs some time to explore.The data property rights advocated by the data property protection theory may strengthen the data monopoly of big Internet enterprises;The protection theory of contract law cannot solve the problem of third party tort;Tort law protects the path of the plaintiff’s property loss calculation can not be determined,there is a problem in proving causality.However,the protection path of competition law has a relatively wide range of protection,and can provide corresponding relief for enterprises whose data rights and interests are infringed when the data-related legislation is not perfect,which has practical feasibility.First,from the perspective of regulation mode,the behavioral regulation mode of Anti-Unfair Competition Law is consistent with the current protection status of commercial data.The behavioral regulation mode does not need to consider the ownership issue of commercial data,and can skip the ownership dispute to solve practical problems.The empowerment and protection requires a clear state of rights basis.Second,from the perspective of the scope of the protection law’s interests,behavioral regulation has a wider scope of protection than empowered protection.Since data capture involves multiple interests,it is more necessary to balance the interests of all parties.Thirdly,from the perspective of existing legal norms,the regulation path of Anti-Unfair Competition Law has existing legal norms.There are still many problems in regulating commercial data grabbing through Anti-Unfair Competition Law.At present,there is no special legislation specifically aimed at "data capture",so we can only use the second "general clause" of Anti-Unfair Competition Law and the twelfth "Internet Article" of Anti-Unfair Competition Law to regulate the unfair competition behavior of publicly-related commercial data,and the unfair competition behavior of non-publicly-related commercial data.It is regulated by Title IX of the Anti-Unfair Competition Law,the Trade Secrets Clause.However,due to the limited scope of application of the "Internet special provisions and trade secrets" provisions,the "general provisions" of the " Anti-Unfair Competition Law " are often invoked in judicial practice to solve the disputes involving unfair competition in commercial data capture.It is worth noting that Article 18 of the Anti-Unfair Competition Law(Draft for Comments)adopts a closed enumeration method to specify the types of behaviors of improperly obtaining and using other operators’ business data,which can effectively solve the current reliance on "general provisions".At present,the "general provisions" are used to regulate improper data capture behavior,and there is a pan-moral judgment of the legitimacy of commercial data capture behavior.The damage compensation mechanism of commercial data capture is not perfect;Data equity considerations are biased to single issues.The identification of the imlegitimacy of commercial data capture starts from the subject of behavior,and the identification of the "operator" in Anti-Unfair Competition Law should be broader.No matter whether the operator has business qualification or profit,as long as the market competition behavior affects the market competition order,it should fall into the category of the operator in Anti-Unfair Competition Law and fall into the adjustment scope of competition law.The objects infringed by unfair competition behavior of commercial data capture can be divided into the rights and interests of Internet operators to their commercial data;The rights and interests of Internet platform users with respect to their personal data;For the public interest,the balance of interests of the three parties should be fully considered when determining the impropriety of commercial data capture.The analysis of the impropriety of commercial data capture should also include whether the data capture is authorized or not;Whether the operator has substantial input in the commercial data captured;The subjective purpose of the data grabber;Whether the behavior of data capture conforms to business ethics and industry norms;The damage result of data capture behavior is measured in these five aspects.In view of the problems existing in the specific judicial application of Anti-Unfair Competition Law in commercial data grabbing involving unfair competition in theory and judicial practice,the paper tries to put forward four specific suggestions: first,add special provisions for data grabbing behavior;second,establish a more explicit compensation amount evaluation system;third,Introduce the rule of interest judgment;fourth,Serve as a guide case.With the introduction of the Anti-Unfair Competition Law(Draft for Comments),the Anti-Law is about to be significantly revised.In the future,it is necessary to further explore how the revised Anti-Unfair Competition Law can play its role in regulating data capture related to unfair competition.