平台封禁的反不正当竞争法应对——以《反不正当竞争法》的修订为背景

The Regulation on Platform Blocking by the Law against Unfair Competition--In the Background of the Revision of the Law against Unfair Competition

平台封禁是指数字企业利用技术手段关闭面向特定经营者的应用程序接口,致使特定经营者无法使用平台设施的竞争行为,具体表现为屏蔽软件功能、禁止外部链接直连或接入某项业务等方面。该行为很可能破坏竞争秩序,阻碍数字经济健康发展。鉴于反垄断法难以充分回应平台封禁,适用反不正当竞争法规制平台封禁成为维护数字竞争秩序的可行选择。在《反不正当竞争法》修订的背景下,平台封禁应当参照恶意不兼容予以处理。认定平台封禁是否构成恶意不兼容应以“妨碍、破坏其他经营者合法提供的网络产品或者服务正常运行”为主要标准,兼顾“恶意”的主观心态。为应对平台封禁,《反不正当竞争法》的“网络条款”需要修订,执法机制应予以优化,司法裁判需作出相应变革。

The platform blocking refers to the competitive behavior of digital enterprises using technological means to close application program interfaces aimed at specific operators,resulting in specific operators being unable to use platform facilities.This is manifested in blocking software functions,prohibiting external links from directly connecting or accessing certain businesses,and so on.This behavior is likely to disrupt the competitive order and hinder the healthy development of the digital economy.To distinguish between legal and illegal platform blocking,the following two steps need to be taken:first,analyze whether platform blocking constitute an abuse of market dominance;second,determine whether the platform blocking constitutes unfair competition behavior.The refusal of transactions or self preferential treatment systems in antitrust laws are difficult to respond to platform blocking.It is of great significance to determine whether platform blocking constitute unfair competition behavior.According to the provisions of the draft for soliciting opinions on the revised draft,the regulatory paths for platform blocking include the following three:firstly,according to Article 13 and Article 47,it is determined that platform blocking constitute an abuse of relative advantage;Secondly,apply Article 16 to classify illegal platform blocking as malicious incompatibility;Thirdly,Article 17 specifically targeting specific prohibited acts shall apply.Through comparative analysis,platform blocking should be handled according to malicious and incompatible paths.The key to determining the illegality of platform blocking lies in distinguishing between legitimate and illegal platform blocking.Because illegal platform blocking corresponds to malicious incompatibility,the determination of illegality should be based on the differentiation criteria between malicious(illegal)incompatibility and legal incompatibility.The determination of illegality is mainly based on the criterion of"obstructing or disrupting the normal operation of network products or services legally provided by other operators",as well as the subjective mentality of"malice".The courts or law enforcement agencies should fully listen to the opinions of both the plaintiff and defendant,administrative counterparties,or whistleblowers to prevent excessive discretion.In response to plaform blocking,the"Internet Clause"of the the Law against Unfair Competition needs to be revised,law enforcement mechanisms should be optimized,and judicial rulings need to make corresponding changes.Regarding the issue of platform blocking,some scholars advocate referring to the EU's"gatekeeper"system to ex ante regulate the blocking behavior of Chinese super platform enterprises,while others advocate accelerating the development of technical standards for interconnectivity to promote connectivity between platforms.However,there are also voices of questioning in the academic community regarding the'gatekeeper"system;The formulation and implementation of technical standards rely more on free negotiation among enterprises and industry association autonomy,and should not be forced.The complementary advantages and interconnectivity among operators are the result of seeking benefits and avoiding harm under market competition incentives.The ban behavior implemented by operators after weighing the pros and cons is also the result of free choice,and it is still the rightful meaning of current interconnectivity.As a remedy for market failure,the legal regulation of platform bans should be limited to specific condition.Currently,the interconnected digital ecosystem can only be gradually realized with the progress of technological level and the improvement of competitive level.