China News Service, Beijing, February 7 (Reporter Wang Qingkai) The Anti-Monopoly Commission of the State Council of China issued on the 7th the Anti-Monopoly Guidelines of the Anti-Monopoly Commission of the State Council on the Platform Economy (hereinafter referred to as the "Guide"), which reflects more on the Internet. The platform "choose one of two" and "big data to kill familiarity" issues have made special provisions, clarifying whether the relevant behavior constitutes a monopoly behavior.
The "Guide" clarifies that "choosing one of the two" may constitute an abuse of market dominance to restrict transactions.
"Choose one between two" is a general statement of the public on platform operators that require platform operators not to operate on other competitive platforms and other unreasonable restrictions.
The "Anti-Monopoly Law of the People's Republic of China" (hereinafter referred to as the Anti-Monopoly Law) prohibits operators from abusing their dominant market position, and there is no legitimate reason to restrict the counterparty of the transaction to only dealing with it or only with the designated operator.
Therefore, the prerequisite for the "choice of two" behavior under anti-monopoly laws and regulations is that the operator who implements the behavior has a dominant market position.
The "Guide" clarifies the factors that can be considered to constitute restricted transaction behavior, including platform operators requesting platform operators to "choose one of two" or other behaviors with the same effect between competing platforms.
At the same time, from the perspectives of punitive measures and incentive measures, the "Guide" further refines the criteria for judging whether behaviors such as "choose one out of two" constitute restricted transactions: platform operators use blocked shops, search power reduction, traffic restriction, Restrictions on the implementation of punitive measures such as technical barriers and deduction of deposits can generally be deemed to constitute restricted transactions due to direct damage to market competition and consumer interests; platform operators provide incentives such as subsidies, discounts, concessions, and traffic resource support. If there is evidence to prove that the restrictions imposed by the method have an obvious exclusion or restriction effect on market competition, it may also be deemed to constitute a restricted transaction.
The "Guide" also clarifies that "big data kills familiarity" may constitute an abuse of market dominance and differential treatment.
"Big data kills familiarity" is a general statement that the public uses big data and algorithms to analyze users' "portraits" on Internet platforms, thereby charging different prices.
The anti-monopoly law prohibits business operators from abusing their dominant market position and discriminates against counterparties in transactions with the same conditions in terms of transaction prices and other transaction conditions without justifiable reasons.
The "Guide" clarifies the factors that can be considered to constitute differential treatment, including the implementation of differential transaction prices or other transaction conditions based on big data and algorithms in the field of platform economy, according to the payment ability, consumption preferences, and usage habits of the counterparty of the transaction. .
Regarding the determination of whether the transaction counterparty is "same conditions", the "Guide" specifically stipulates that differences in the privacy information, transaction history, individual preferences, consumption habits, etc. of the transaction counterpart obtained by the platform in the transaction do not affect the determination of the transaction counterparty conditions the same.
The relevant person in charge of the Office of the Anti-Monopoly Commission of the State Council stated that in practice, if operators in the field of platform economy have a dominant market position and impose different transaction prices and other transaction conditions on different consumers, it may constitute an act of differential treatment.
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