数据爬取不正当竞争认定的反思及路径重构

Reflection and Path Reconstruction on Identification of Unfair Competition in Data Crawling

数据爬取是近些年才成熟的技术,其天然的技术中立性使得爬取行为亦具有竞争中性之属性。数据爬取以互联网为依托,而互联网领域跨界竞争乃为常态,这便对传统竞争关系认定理念造成冲击。同时,数字科技这一新兴领域的商业道德标准模糊,使得正当性认定标准难以统一。司法裁判理念亦未完全革新,涌现出许多类案不同判的现象。基于此,应将“竞争关系”作实质性解读,即只要双方经营者之间的交易机会、竞争优势等存在此强彼弱的关联反应,便可以认定双方存在竞争关系。对于正当性认定,可将多元利益动态衡量作为基础框架,秉持谦抑干预理念,以比例原则作为主要进路,细化商业道德认定标准,分获取、使用两个阶段对行为正当性分别进行评判。只有统一司法认定标准,才能对不正当的数据爬取行为进行精准、有效规制。

Data crawling is a technology that has only matured in recent years.Its natural technology neutrality makes crawling behavior also competitively neutral.Data crawling relies on the Internet,and cross-border competition in the Internet field is the norm,which has an impact on the traditional concept of identifying competitive relationships.At the same time,business ethics standards in the emerging field of data are vague,making it difficult to unify standards for legitimacy determination.The concept of judicial adjudication has not been completely reformed,and many similar cases have been adjudicated differently.Based on this,the"competition relationship"should be interpreted in a substantive manner,that is,as long as there are strong and weak correlation reactions between the business operators of both parties in terms of transaction opportunities and competitive advantages,it can be determined that the two parties have a competitive relationship.For the identification of legitimacy,we can use the dynamic measurement of multiple interests as the basic framework,adhere to the concept of modest intervention,use the principle of proportionality as the main approach,refine the standards for identification of business ethics,and judge the legitimacy of behavior in two stages:acquisition and use.Only by unifying judicial identification standards can improper data crawling behaviors be accurately and effectively regulated.