通过竞争设计实现数字市场竞争保护——以GDPR隐私设计条款为镜鉴

Digital Market Competition Protection by Competition Design ——Taking the GDPR Privacy Design as a Mirror

随着数字经济的繁荣发展,数字市场的垄断行为基于复杂性和隐秘性更难以受到法律制裁。结合新技术探寻保护我国平台市场竞争秩序的新方式已然迫在眉睫,欧盟《通用数据保护条例》(GDPR)中确立的隐私设计条款是非常合适的借鉴对象。与隐私设计相似的竞争设计也应予以考虑和引入,即在一项产品(服务)诞生之初,理念设计、公司决策程序等所有设计环节都考虑竞争保护,以算法"规制"算法。竞争设计机制能够提高竞争保护理念在各领域的渗入,促进竞争保护由事后向事前转换,实现社会共治治理模式转变。与此同时,竞争设计也可能存在可操作性欠缺、信任危机薄弱的潜在性风险。因此,要发挥竞争设计机制的优越性,需要从制度层面予以系统构建:首先,需要明确竞争设计在数字市场竞争保护体系中的基本定位,将竞争设计作为企业竞争合规的重要方式;其次,需要增强竞争设计的可操作性,借鉴隐私设计的步骤和策略,沿用或创设竞争设计的具体实施方式;最后,还需要创新确立竞争设计的法律保障体系,以法律规则为竞争设计提供制度支持,同时构建算法行政与竞争设计配合下的双重监管。

The development of the digital economy is increasingly prosperous. The monopoly of the digital market is more difficult to be sanctioned by law because of its complexly and secrecy. Combining new technologies to explore new ways to protect the order of competition in Chinese platform market is already imminent. The privacy design clause established in the EU General Data Protection Regulation(GDPR) is a very suitable reference object. Competition by design is similar to privacy by design, which should also be considered and introduced. That is, at the beginning of a product(service), all design links such as concept design and company decision-making procedures should consider competition protection, to achieve “regulation” of algorithms with algorithms. The competition design mechanism can improve the infiltration of competition protection concepts in various fields, promote the conversion of competition protection from ex post to ex ante, and realize the transformation of social co-governance governance model. But at the same time, competition by design may also have potential risks of lack of operability and weak trust crisis. Therefore, to give full play to the superiority of the competition design mechanism, it needs to be systematically constructed from the institutional level. First of all, it is necessary to define the basic positioning of competitive design in the digital market competition protection system, taking competitive design as an important way of enterprise competition compliance. Secondly, it is necessary to enhance the operability of competitive design, use the steps and strategies of privacy design for reference, and adopt or create specific implementation methods of competitive design. Finally, it is necessary to innovate and establish a legal guarantee system for competitive design. Laws should provide institutional support for competitive design, and at the same time build a dual supervision under the coordination of algorithmic administration and competitive design.