Not long ago, the State Administration of Market Supervision and Administration issued the Interim Provisions on Anti unfair Competition on the Internet (hereinafter referred to as the Provisions). The Regulations are a phased achievement of strengthening the governance mechanism of fair competition and building a unified national market, which will be implemented on September 1. It adheres to the goal orientation and problem orientation, with the basic goal of encouraging innovation and promoting the sustainable and healthy development of the digital economy, aiming to solve the emerging hot and difficult issues of new unfair competition in the digital economy, and eliminate the chaos of unfair competition on the Internet.
In recent years, the rapid development of China's digital economy has played a positive role in promoting high-quality economic and social development, but there have also been some unfair competition chaos. There are not only traditional unfair competition behaviors such as counterfeiting, confusion, false propaganda, and commercial slander, but also new types of network unfair competition behaviors with greater concealment, such as illegal data crawling, traffic hijacking, and reverse order swiping. These unfair competition behaviors not only damage the legitimate rights and interests of consumers and other operators, affect the healthy and sustainable development of the digital economy, but also restrict the formation of a unified national market.
The Regulations anchor the purpose of "promoting development by regulation and promoting development by regulation", and are committed to strengthening the construction of regulatory capacity against unfair competition, and building the cornerstone of the rule of law for fair competition in the digital economy. On the one hand, the Regulations have refined and improved the anti unfair competition rules in the digital economy field, and strengthened the pertinence, scientificity and operability of the law enforcement standards. This not only helps to improve the level of supervision, enhance the quality and efficiency of supervision, effectively protect the innovative achievements of operators, but also can avoid interfering in market competition due to improper supervision, which leads to the obstruction of technological innovation; On the other hand, the Regulations, based on the new characteristics, new trends and new requirements of China's digital economy development, clarify the identification criteria for the illegitimacy of various types of online competition behaviors, which can urge operators of different scales to develop in coordination, jointly maintain the fair competition order, and provide a feasible path to solve the problem of consumer rights protection in the online consumption scene.
Based on the characteristics of unfair competition in the field of digital economy, the Regulations, by consolidating, summarizing and refining previous law enforcement experience, focus on solving the classification and identification problems of network unfair competition that are highlighted in practice. On the one hand, the Regulations clarify the new forms and regulatory requirements of traditional unfair competition behaviors such as counterfeiting, confusion and false propaganda in the context of the digital economy. For example, the Regulations list unauthorized use of other people's influential application software, clients, public accounts and other signs as forms of counterfeiting and confusion, and clarify the forms of administrative penalties such as ordering to stop illegal acts, confiscating illegal goods, and fines. On the other hand, the Regulations list the types of new types of network unfair competition behaviors, such as illegal data crawling, traffic hijacking, reverse order swiping, and refine the constituent elements and evaluation elements of related behaviors. For example, according to the Regulations, the behavior element of illegal data crawling is to illegally obtain and use the data legally held by other operators by technical means, while the result element is to hinder and destroy the normal operation of network products or services provided by other operators.
These detailed determinations not only consolidate the existing anti unfair competition law enforcement achievements, but also provide the institutional basis for the law enforcement authorities to innovate the content, methods and tools of law enforcement, and also provide clear and clear online anti unfair competition compliance guidelines for operators, which helps to promote the construction of the fair competition compliance management system for operators.
In order to effectively regulate network unfair competition, the Regulations also improved the comprehensive governance model from three dimensions of subject, basis and mode, which helps to improve the effectiveness of comprehensive governance. In the dimension of governance subjects, the Regulations not only refine and strengthen the regulatory responsibilities of anti unfair competition law enforcement agencies, but also require the implementation of the main responsibilities of industry organizations and platform operators, clarify the auxiliary governance responsibilities of platform operators, and urge platform operators to strengthen the standardized management of competition behaviors within the platform.
In the dimension of governance basis, the Provisions clarifies the cooperative implementation mechanism of laws and regulations such as the Anti unfair Competition Law, the Anti monopoly Law, the E-commerce Law, and the Administrative Punishment Law, and is committed to giving full play to the implementation efficiency of these laws and regulations in a systematic and multi-dimensional manner to regulate online unfair competition.
In the dimension of governance mode, the Regulations created the expert observer system, which provides external intellectual support and experience support for law enforcement agencies to investigate new and difficult cases, so as to improve the scientific and professional level of supervision; In addition, the Regulations explore the establishment of special case jurisdictions for major network unfair competition behaviors that are reported centrally or have serious consequences, so as to conduct centralized law enforcement and jurisdiction over such behaviors.
To sum up, the Regulations clarify the specific applicable rules of the legal system against unfair competition in the field of the digital economy, and properly handle the dialectical relationship between regulating and developing the digital economy, which is conducive to building a pattern of integrated development of China's digital economy and the real economy and helping to build a unified national market.
(The author is the executive director of the Competition Law Research Center of East China University of Political Science and Law)
