我国反不正当竞争法商业数据专条的制度构建——兼评《反不正当竞争法(修订草案征求意见稿)》第18条

Institutional Construction of a Special Article on Commercial Data in China's Anti-Unfair Competition LawAlso a Commentary on Article 18 of the Bill to Revise the Anti-Unfair Competition Law(Exposure Draft)

从我国近年来的商业数据行业状态和司法实践来看,《反不正当竞争法(修订草案征求意见稿)》第18条(商业数据专条)在概念界定、行为类型化、例外规则上均存不足。为更好协调商业数据保护与利用,参考日、韩等国的数据保护竞争立法经验,应从以下方面构建商业数据专条:一是从“质”“量”及与商业秘密的关系维度,科学合理界定商业数据范围;二是依据行为人及其主观过错来类型化不正当竞争行为,着重规制以不正当方式获取他人商业数据及后续使用或披露行为,并将帮助他人以不正当方式获取商业数据的行为纳入规制范围;三是优化例外规则以平衡私人利益与公共利益;四是无需在商业数据专条中设置兜底条款。

Commercial data legally collected and held by enterprises is an important part of data elements and the backbone of the digital economy.To release the full potential of commercial data,it is necessary to establish a good data competition order.Unfortunately,the current law does not clarify the legal attributes of data,resulting in unruly behaviors of data competition among enterprises,which may hinder the development of the data economy.Article 18 of the Bill to Revise the Anti-Unfair Competition Law(Exposure Draft)attempts to construct a"special article on commercial data"from three perspectives:concept definition,conduct enumeration and exception rules.However,judging from the situation of the commercial data industry and judicial practice in China in recent years,as well as the legislative experiences of data protection competition in Japan and South Korea,the special article on commercial data still has such defects as an overly broad scope of commercial data,incomplete types of regulated behaviors,and unclear definition of exception rules.Since the purpose of protecting commercial data through the adoption of the anti-unfair competition law is to maintain the data competition order by granting limited protection to data holders,thereby releasing the potential of data elements,rather than restricting the flow and use of data through strong protection,it is necessary to carefully balance the private interests of commercial data holders with the corresponding public interests.The special article on commercial data can be constructed in the following ways:firstly,requiring that the protected commercial data must be non-trade secret electronic data legally collected,having commercial value,and reaching a certain scale,and must be subject to management measures taken by the holder;secondly,categorizing unfair competition behaviors of commercial data according to the perpetrators and their subjective faults,focusing on regulating the improper acquisition and subsequent use or disclosure of commercial data of others,and including the act of helping others to improperly obtain commercial data into the scope of regulation;thirdly,optimizing the exception rules on the basis of distinguishing information and data,so as to better balance private and public interests;and fourthly,not setting up a miscellaneous clause within the special article on commercial data,so as to ensure the scientificity of the special article on commercial data and the entire Law-no such a clause is needed because the Anti-Unfair Competition Law already contains"General Provisions"and the"Miscellaneous Clause of the Internet Article".