论平台“封禁”的反垄断规制——以社交平台为研究对象

Anti-competitive Regulation of “Banning” Behaviors on Social Platforms

随着数字化进程的不断推进,互联网人口红利见底,国内数字市场进入存量竞争阶段,互联网平台间竞争加剧,以“封禁”为典型的反竞争行为呈现频繁化、规模化、常态化趋势。在扩张多元市场、构建产业生态体系之际,社交平台运用封禁手段把控流量入口,在严重影响生态外竞争对手的产品和服务之余,也形成了市场准入和拓展壁垒,抑制了市场竞争活力和创新动力,侵害了消费者和社会公共利益,逐渐成为阻碍数字经济健康发展的症结所在。故此,应立足于《反垄断法》,结合数字经济竞争特点,洞悉平台流量垄断本质,构建多元而动态的反垄断规制体系。一是要发展监管科技,保障平台行为动态合规,适当施以平台开放义务,弱化事后处罚机制。二是要充分考量竞争损害的构成要素,重构反垄断分析范式。三是要把握市场公平与效率的动态平衡,必要时以结构性救济为兜底保障。

With the continuous advancement of the digitalisation process, the demographic dividend of the Internet has bottomed out. Stock competition, among China’s digital platform companies has intensified, driving constant competitive development of new and more targeted products and services to cater to users’ needs. Social platforms are breaking traditional market territory and transmitting their market power to horizontal, vertical and even multi-dimensional markets. An even more intensive form of competition deployed by the social business platforms has been the use of “banning” methods to restrict traffic in order to give full play to the user traffic advantages of higher stickiness and stronger lock-in effect in its native market, and this has a serious negative impact on the ecological environment.In addition to competitors’ products or services, they form barriers to market access and expansion. In practice, anti-competitive behaviors such as “banning” are becoming more frequent, large-scale, and normalized, inhibiting the vitality of market competition and innovation, infringing on consumers and social public interests, and gradually becoming the crux of hindering the healthy development of the digital economy.The innovation of digital technology brings the risk of Schumpeter’s creative destruction, which keeps the market in a dynamic competition stage. In order to consolidate and strengthen its own market power, the dominant platform has begun to adopt a cross-border competition strategy to broaden and improve its own industrial ecology. With the comprehensive and in-depth advancement of industrial digitization, the platform penetration rate has become increasingly saturated, and the battle to increase user increment has come to an end, and the focus will then be on the competition for user stock traffic.The so-called traffic refers to the user traffic index of a specific platform website or app, which consists of the number of users, the number of visits, the average visit duration, and the total visit duration. Its essence is transaction opportunities and user attention. The irreplaceability and criticality of user traffic to platform development creates a new dimension of competition among platform ecosystems. In this context, social platforms abuse the autonomous power of “banning” by closing API interfaces, coercing users to “choose one”, and restricting, negatively processing, or even completely banning competitors’ information, services, and content sharing links, forming a traffic monopoly pattern.As an emerging organizational method and economic form in the development of the digital economy, platform ecology has transformative differences in its operation mechanism, behavioral model, competition logic and market structure from the traditional industrial economy. The dynamic,zero-price, and cross-market attributes of the platform ecology make it difficult to determine relevant markets, calculate market shares, and analyze competition damage.Therefore, we should jump out of the traditional analysis framework of the Anti-Monopoly Law,combine the competition structure of the digital economy, gain insight into the nature of platform traffic monopoly, and build a diverse and dynamic anti-monopoly regulatory system. The first is to develop regulatory technology to ensure the dynamic compliance of platform behavior, and to introduce a“gatekeeper” system to impose platform opening obligations to weaken the ex post punishment mechanism. The second is to fully consider the elements of competition. damage in the digital economy and reconstruct the antitrust analysis paradigm. The third is to grasp the dynamic balance between market fairness and efficiency, and use structural relief as the bottom line when necessary.