数据抓取及其限制行为正当性认定:司法裁判与应然路径

Justification of Data Capture and Restriction Behavior:Judicial Judgment and the Way Out

当前司法实践中对数据抓取及其限制行为正当性的认定存在两方面缺陷,即行为认定“泛道德化”和对经营者利益考量“单向化”,导致数据控制方不当处于“道德高地”,并呈现出“权利化”保护倾向,忽视了数据抓取方的数据利益。对数据抓取不正当竞争纠纷的司法裁判,不仅要应坚持保护竞争而非竞争者的竞争法价值取向,秉持谦抑适度的司法干预态度,还应构建以多元利益平衡为核心、以比例原则为分析框架的行为正当性认定机制,将数据抓取及其限制行为是否满足妥当性、必要性和相称性要求,是否造成了足以破坏市场竞争秩序的利益失衡结果作为正当性认定依据。

In current judicial practice, there are two flaws in the determination of the legitimacy of data capture and its restrictions. One is that the determination of behavior is “pan-moralized”, and the other is that the consideration of the interests of operators is “one-way”, which ensures improper advantage of the data controller, and presents a “rights-based” protection tendency, while ignoring the data interests of the data capture party. Adjudication of unfair competition disputes about data capture should, on the one hand, adhere to the value orientation of competition law that protects competition rather than competitors, and adopt a modest attitude of judicial intervention. On the other hand, it is necessary to establish a behavioral justification mechanism with the balance of multiple interests as the core and the principle of proportionality as the analytical framework. The justification of data capture and its restriction should be based on whether the behavior meets the requirements of appropriateness, necessity, and proportionality, and whether it has caused an imbalance of interests that is sufficient to disrupt the order of market competition.