网络广告屏蔽行为性质认定中利益衡量方法的适用改进

Improvement of the Interest Balancing Method in the Identification of the Nature of the Internet Advertising Blocking Behavior

网络广告屏蔽在司法实践中一直被法院定性为不正当竞争行为,导致了过于偏向网络广告发布方利益、忽视消费者和屏蔽软件提供方利益的裁判结果。这是因为对网络广告屏蔽行为加以定性的过程中,利益衡量方法的适用发生了偏差。产生偏差的原因在于,利益衡量基本标准缺失,利益衡量理念存在滞后,利益衡量因素考虑不够全面。因此,需要改进利益衡量方法的适用,以实现社会利益最大化为宗旨,设置更具体的衡量指标,平衡网络广告发布方、消费者和屏蔽软件提供方三者之间的利益冲突,在不影响互联网产业发展的前提下,尽可能提升消费者的利益空间。

During judicial practice, internet ad-blocking has always been regarded as unfair competition behavior by the courts. The courts pay more attention to the interests of internet advertisement publishers. On the contrary, the interests of consumers and advertising shielding software providers are ignored. During the process of characterizing the internet ad-blocking behavior, the courts took an inappropriate use of interest measurement method. There are many reasons, such as a lack of the basic standard of interest measurement, the idea of interest measurement is out of date and the consideration of interest measurement is not enough. Therefore, it is necessary to improve the application of interest measurement method. We must set up more specific measurement criterion as well as balance the interests among internet advertisement publishers, consumers and ad-blocking software providers. In other words, we need take into account the development of the internet industry and the interest of consumers at the same time.