How to reshape competition rules in e-commerce
E-commerce platform "two choose one" legality disputed enterprise market dominance status to be determined to be refined
● Appropriately clarify that Internet companies that have a clear comparative advantage abuse their dominant position to treat the counterparty of the transaction differently, and there is no justification, violation of the principle of good faith and the illegality of recognized business ethics
● The "two choose one" behavior is reasonable under certain circumstances, which helps to improve the operating efficiency of the "two choose one" implementation platform, reduce operating costs, and increase brand loyalty. However, the harm of "two choices" to market competition is also obvious, or may lead to and aggravate the risk of data monopoly, fundamentally subvert the market competition order and situation
● The three laws of e-commerce law, anti-unfair competition law, and anti-monopoly law all have room for "two choose one" behavior, but all need to be clear and perfect
□ Reporter Zhang Wei
In the Internet field, disputes about competition and monopoly have never been far away. In recent years, the voice in the e-commerce field has gradually grown.
For Internet giants, the name of "super platform" is a sweet burden. Its massive users, huge data, and outstanding competitive advantages not only accumulate wealth for it, but also make it often fall into "monopoly". Among.
For the late entrants, they have lost their opportunities in the market competition and often need to follow in the rules of the game. If they want to redistribute the "cake", they will inevitably encounter resistance from the first entrants. It is inevitable to be passive in some aspects. .
How to qualitatively reshape competition rules in the field of e-commerce, protect consumer rights, optimize the network business environment, and promote the healthy and orderly development of the e-commerce industry, China Institute of Applied Law (hereinafter referred to as the Law Institute) recently completed "in e-commerce" "The nature of the two choices and the application of the law" subject research, and passed the expert review on June 8 this year.
The research report of this topic pointed out that it is necessary to clearly clarify that Internet companies that have a clear comparative advantage abuse their dominant position to implement differential treatment to the counterparty of the transaction, and there is no justification, violation of the principle of good faith and the illegality of recognized business ethics, which is A good order of competition in the Internet market is of positive significance.
There are currently only two cases
Whether it is illegal to dispute
Although there are many controversies about "choosing one from the other", in reality it is actually used as a sue for the other party's monopoly, and very few people are involved in the court.
Ding Wenyan, head of the Civil and Commercial Trial Research Department of the Institute of Law Research, revealed in a recent project review meeting: "Most of the relevant cases found in the survey were due to platform service contract disputes, and some appeared to be "competitive" disputes. There are only two cases of monopoly."
Moreover, even in foreign countries where the development of the Internet started earlier, it is equally difficult to find similar case samples, and the number is extremely small.
Why is there a "thunder, heavy rain and small rain" situation? The fundamental problem lies in the controversy about whether the "two choices one" is illegal, so that in practice the "two choices one" behavior has been "tested on the edge of legality and illegality".
Wang Jian, a professor at Zhejiang University of Technology, believes that there may be more cases involving "two choices" in the market supervision department, and it is indeed "a little less" in the courts. "'Two choices one' is actually not necessarily illegal. Judgment of illegality is indeed more complicated."
"I have noticed that some companies are indeed developed with the help of the platform, and many platforms are directionally supporting the enterprise." Wang Jian said that if an enterprise can break away from the support of the platform through its own efforts, it may not be possible within a year or two Reach today's scale. In the process of providing a good path for the development of SMEs, the platform has also invested a lot of resources in enterprises.
For these companies, Wang Jian believes that it is reasonable for the platform to sign a contract with both parties if they voluntarily agree on the "two choose one" arrangement. This is in line with the exemption of anti-monopoly law for emerging industries.
"But from the currently public information, most of the restricted trading activities have the characteristics of unilateral coercion, and voluntary agreements are rare." Wang Jian said that there are currently views that unilateral agreements are the autonomy of the platform, but because of the current platform Since it is both an enterprise and a market, platform autonomy needs to be limited, and beyond certain limits, it is necessary to call for regulatory forces to intervene.
The constantly changing Internet industry is still an emerging field. It is not uncommon for the anti-monopoly law to wield the double-edged sword and how to wield it. At present, the voice of "letting bullets fly for a while" is also not uncommon. The policy orientation of the new business form that advocates inclusive and prudential supervision is consistent. After all, if the management and punishment are unreasonable, the risk of stifling the growth vitality of Internet companies and even the entire industry is equally terrible.
Xu Guangyao, a professor at the Law School of Nankai University, called the research on antitrust law in the Internet field "one of the most cutting-edge issues." "I am afraid it is the top three most difficult subject." In his opinion, to what extent the Internet has developed, everyone still does not know that it will be different after a few years and a few years ago, and this will bring greater challenges to antitrust laws.
One layer of the Internet has not yet been unveiled, which requires a process, but it does not mean that anti-monopoly laws and anti-unfair competition laws, etc., are ignored regardless of the "two choose one" and other issues involving the Internet competition order. Xu Guangyao emphasized that as long as the behavior had a damaging effect, there was a need for legal adjustment. Those studies on basic issues such as legal characterization will also provide a solid theoretical basis for regulating unfair competition.
Undermine the order of market competition
Increase the risk of data monopoly
The research of the Law Institute has achieved breakthroughs in the above two aspects.
It is understood that the research report completed the research on the definition and characteristics of the "two choose one" behavior of the e-commerce platform. In terms of definition, the report believes that "choose one of two" mainly describes a special operating method under the technical conditions of the Internet. It refers to the relevant market operators through various technical measures or contractual arrangements, so that the objects with which they have a trading relationship face " Choose to trade with yourself, but not with other operators” and “refuse to trade with yourself”, and mobilize all its resources to prompt the object to choose the previous “option” to exclude competitors’ trading opportunities. The "two choose one" behavior model includes the civil field, and there are some hidden ways of discounting, which do not directly target platform operators, but require users to implement "two choose one".
The "two choose one" mainly has the following characteristics: one is the particularity of the identity of the subject, that is, the main body of the implementation of the "two choose one" is mainly a large-scale e-commerce platform; the second is the coercion of behavior, including the coercion derived from the main position Sex, the compulsion of management methods and the compulsion of technology; the third is that the external openness is transformed into the internal concealment, so that there are many interferences in the identification of related behaviors.
The research report affirmed the rationality of the "two-for-one" behavior under certain circumstances: it will help to improve the operating efficiency of the "two-for-one" implementation platform, reduce operating costs, and increase brand loyalty, but at the same time point out that its The harm of competition is also obvious. For example, it will rule out and restrict competition, which has a clear rejection effect on existing competitors and potential competitors. At the same time, it will also increase the market access threshold, so that potential capital may be discouraged, and at the same time hinder the improvement of related products or service quality. .
As another example, it will directly damage the interests of the operators in the platform. E-commerce platform operators who take measures such as "traffic punishment" against operators who refuse to cooperate with the "two-for-one" platform will directly damage the economic interests of the merchants, increase operating costs, and fail to develop new consumers. Flow resources effectively activate the domestic demand market.
It is particularly worth noting that the "two choices one" behavior will eventually harm the interests of consumers. Directly limit consumers' choices, directly reduce consumer choice opportunities, and affect the quality of products or services. In particular, consumers' personal information protection will be threatened.
"The motive for this threat is not the impulse to profit from buying and selling consumer personal information on e-commerce platforms, but the obedience to the fundamental rules of online competition for obtaining user data, competing for user traffic, and competing for network users." The research report pointed out.
In addition, "two choose one" will also lead to and aggravate the risk of data monopoly, fundamentally subvert the order and trend of market competition. The research report mentions that from the perspective of current social development reality and reasonable expectations, the advantages of data and information have been mastered by a few companies, and they will become the majority of the relevant market segments by virtue of their dominant position at the level of data and information. Competition winners, and more and more frequently implement "cross-platform" and "cross-domain" competition.
Wang Xiaoye, a researcher at the Institute of Law of the Chinese Academy of Social Sciences, affirmed this. She believes that in some cases, "choose one of two" is to focus on improving the economic efficiency of enterprises, which is good for the market and good for consumers. "If a company has just entered the market and no one knows it at all,'choose one' is very important for it to enter the market and participate in competition, which is beneficial. But if the companies on the market have become an oligopoly situation, the market share is actually There is already a big gap, so engaging in'choice one' may exclude smaller platforms."
Improve the application of the three laws
Legal regulations need to be clarified
Although there are not many cases of judicial practice directly under the name of "two choose one", related disputes will occur in law enforcement and future judicial practice. How to regulate it legally needs to be clarified.
The Guiding Opinions of the General Office of the State Council on Promoting the Standard and Healthy Development of Platform Economy in August last year clearly stated: "It is strictly forbidden for the platform to unilaterally sign exclusive service provision contracts to ensure fair participation of market players in the platform economy in market competition."
This year’s President of the Supreme People’s Court, Zhou Qiang, stated in the “Work Report of the Supreme People’s Court” that one of the main contents of the work in 2019 is to “justly hear cases such as abuse of market dominance and unfair competition by e-commerce platforms to maintain fair competition in the market” .
It is reported that two cases concerning "choose one of two" are currently under trial, and the relevant judicial practice is also in the stage of exploration. However, there is no more disagreement in the industry regarding the current regulation of "choose one of two".
Regarding how to regulate “two choices one”, the research report believes that the three laws of e-commerce law, anti-unfair competition law and anti-monopoly law all have application space for “two choices one” behavior, but they all need to be clarified and improved. .
Specifically, in addition to considering the role of the plaintiff’s claims and facts in determining the trial path and application of the law in accordance with the principle of punishment in civil litigation, from the perspective of making full use of legal resources, clarifying the legal functions and legal responsibilities, it also considers The choice should be based on the objective situation of the development of China's e-commerce industry and the specific circumstances of the case, that is, for the relatively minor "two choose one", the e-commerce law can be applied; when the punishment of the relevant subject needs to be increased, consider the anti-unfair competition law ; And when the circumstances are more serious, and the punishment of the E-commerce Law and the Anti-Unfair Competition Law is not enough to deter "two-choice one" behavior, the anti-monopoly law should be applied to regulate it in a timely manner. The application of Article 35 of the Electronic Commerce Law requires the necessary refinement and extension of the content of Article 35 through specific guidelines, judicial interpretations or guiding cases of the Supreme Law.
Article 35 of the E-commerce Law stipulates that operators of e-commerce platforms shall not use service agreements, transaction rules and technologies to impose unreasonable restrictions on intra-platform transactions, transaction prices and transactions with other operators, etc. Either attach unreasonable conditions, or charge unreasonable fees to the operators in the platform.
The research report suggests that refining "technical means" into "technical means that adjust the ranking of search results, reduce the correlation between search keywords and results, etc., sufficient to affect the sales or turnover of other operators on the platform" will be "unreasonable" "Restriction" is subdivided into "choose one of two or other exclusive license management methods" and so on.
In addition, the Anti-Unfair Competition Law needs to pay attention to the connection between the "General Terms" and "Internet Terms", and improve the "Internet Terms" through judicial interpretation to achieve a proper balance between the bottom line and the technical details.
It is worth noting that the Supreme Law promulgated at the beginning of this year on the establishment of judicial interpretations also includes the scope and conditions of application of Article 2 of the Anti-Unfair Competition Law and the “Internet Special Provisions”, etc., which are expected to be further clarified through this judicial interpretation.
Antitrust law is the most concerned
Retain refined content
How the anti-monopoly law regulates the "two chooses one" of the e-commerce platform is the most concerned of the three laws. In the existing cases of judicial practice, there are also requests to apply the anti-monopoly law.
The research report believes that the anti-monopoly law has an irreplaceable role in regulating the "two-for-one" behavior of e-commerce platforms. Therefore, it is recommended that the anti-monopoly law be highly concerned about the abuse of market advantages by e-commerce platforms, especially e-commerce The "two choices one" behavior of platform operators retains and refines the relevant content of "Internet enterprise market dominance determination".
On the one hand, fully consider the characteristics of cross-border, dynamic and platform competition among Internet companies, do not overestimate or solidify, and rely on the market share in determining the dominant position in the market; on the other hand, refine the "Internet Factors considered in the determination of corporate market dominance include the competitive characteristics of the relevant Internet industry, business model, number of users, network effects, lock-in effects, technical characteristics, market innovation, the ability to master and process relevant data, and the operator’s ability in related markets Market forces and other factors, on the basis of comprehensive consideration of these factors, make an overall judgment on the market power of Internet companies, especially e-commerce platform operators.
In the determination of the nature of the "two choices one" behavior, it should be clear that online users who receive free services also belong to consumers, and the infringement of the interests of network users by the e-commerce platform implementing "two choices one" also belongs to the violation of consumer interests. . The market position of the "two-choose one" behavior subject is an important basis for choosing the legal regulation path. The effect of the "two-choose one" behavior carried out by an operator with a dominant market position and an operator without a dominant market position has great effects. , Will directly determine the applicable law chosen. When determining whether it has a dominant market position, the core business of the "two choices one" platform should be used to define the relevant market and evaluate the impact of its behavior on competition. The characteristics of "network competition" and "platform operation" should be comprehensively understood. One" behavior.