利用平台内经营者数据优待自营业务的竞争法规制

The Regulation of Competition Law on Using the Operator Data in the Platform to Treat Self-Supporting Business

平台经营者利用平台内经营者数据优待自营业务的行为可分层为获取并分析平台内经营者数据的手段行为和优待自营业务的目的行为。该行为会侵害平台内经营者的数据权益和公平竞争利益、扰乱市场竞争秩序并影响竞争机制的充分发挥、最终导致消费者利益受损。"两反法"有其规制的重点,手段行为造成的损害与反不正当竞争法更匹配,而通过反垄断法规制目的行为更合适。在反不正当竞争法的框架下,手段行为可能符合侵犯商业秘密行为或一般条款的构成要件;在反垄断法的语境下,目的行为可能触犯滥用市场支配地位中差别待遇的规定。

The behavior of platform operators using the data of operators in the platform to give preferential treatment to their own business can be divided into the means of obtaining and analyzing the data of operators in the platform and the purpose of giving preferential treatment to their own business.This behavior will infringe the data rights and interests of the operators in the platform and the interests of fair competition,disturb the order of market competition,affect the full play of the competition mechanism,and ultimately lead to the loss of consumer interests.The two "anti-monopoly laws" have their own key points of regulation.The damage caused by means behavior is more compatible with the anti unfair competition law,and it is more appropriate to regulate the purpose behavior through the anti-monopoly law.Under the framework of anti unfair competition law,means behavior may meet the constitutive requirements of infringement of trade secrets or general terms;In the context of anti-monopoly law,purposeful behavior may violate the provisions of differential treatment in abusing market dominant position.