The author believes that in order to determine that a certain market behavior constitutes unfair competition, it is necessary to prove that it does violate the general principles of the Anti-Unfair Competition Law. Specifically, it is necessary to prove that the browser's function of filtering patch advertisements does violate the principle of good faith and recognized business ethics, and its behavior will damage the legitimate rights and interests of other operators and disrupt market order. For example, in the case of Youku v. Jinshan, the product Cheetah browser of the defendant Jinshan Company installed a video patch advertisement filtering function, which effectively filtered the opening advertisement of the free video provided by the plaintiff Youku. Although this function is off by default, users can turn it on according to their own needs. Plaintiff thinks that the defendant's provision of a browser with advertisement filtering function involves modifying its website parameters, undermining its legitimate business activities and constituting unfair competition, so he brings a lawsuit to the court. Beijing Haidian Court in the first instance and Beijing No.1 Intermediate People's Court in the second instance both found that the defendant's behavior constituted unfair competition.
(A) on the identification of competitive relations
When explaining the reasons for the judgment, the court of second instance first determined that there was a competitive relationship between the original defendants, and the court will confirm whether there is a competitive relationship between the original defendants as a prerequisite for analyzing whether the market behavior is unfair. The court held that only between competing business entities, one party's behavior can harm the other party's commercial interests and should be adjusted by the competition law, otherwise it would not be a violation of the competition law, and it would not be within the scope of application of the competition law {1}. As far as the author is concerned, the anti-unfair competition law directly regulates the market behavior of operators, so any behavior that does not conform to the legislative principles and spirit of the law should be regarded as unfair competition behavior. In the Paris Convention and the Model Clause against Unfair Competition of the International Intellectual Property Office, the definition of unfair competition behavior takes "violation of good faith" as the only standard, which also confirms this view. In fact, there have been many interpretations of the connotation of "competing relationship" in China's theoretical and judicial practice circles, and the overall trend is to expand the interpretation to support its application in practice. Cao Jianming, Procurator-General of the Supreme People's Procuratorate, once said: Although operators operate different businesses, they can be regarded as having a competitive relationship if they violate the competition principle stipulated in Article 2 of the Competition Law. As far as the wording used in the law is concerned, the word "competitor" is used in four places in the second chapter of 1993 Anti-Unfair Competition Law. In this revised draft, the word "competitor" in the other three places has been deleted and changed to "other" or directly banned. This embodies the new concept that legislation adheres to the nature judgment of behavior and the relationship between the parties is independent of each other. Therefore, the author believes that the basis for judging the nature of behavior should be the general principles of the anti-unfair competition law. Accordingly, the defense that there is no competitive relationship does not constitute unfair competition cannot be established.
In addition, some scholars and judicial practice invariably regard the competitive relationship as the premise of identifying unfair competition behavior, largely because once the competitive relationship between the original defendants can be confirmed, there will be sufficient basis and judgment basis when investigating whether the litigants are qualified. At this point, the author also believes that competition is not a necessary factor to confirm the qualification of the subject, and the key to whether the subject is qualified is to judge whether the accused behavior has caused damage to the counterpart and whether it should be given relief. As for whether legislation allows all injured parties to have the right to sue, it is up to countries to stipulate on the basis of civil procedure law and according to corresponding practice. For example, Germany's competition law gives competitors, industrial and commercial organizations, consumer protection groups and chambers of commerce the right to sue for injunctive relief and return illegal profits, while only giving competitors the right to sue for damages; The federal trade commission law of the United States does not allow private subjects to sue, but the regulations vary from state to state-California grants the prosecution qualification to the attorney general, the district attorney or anyone who represents himself, his members or the general public interest; The State of New York grants compensation to anyone who has suffered damage due to violation of the law, including consumers and operators; Texas only gives consumers the right to sue {2}. In addition, in the draft of China's anti-unfair competition law, consumers are also included in the scope of prosecution. It can be seen that the concept of competitive relationship has been continuously weakened and replaced by more direct and core judgment criteria.
The position of business model in competition law
The mode of "free video+advertisement" is the mainstream business mode of online video websites in China at present. Whether the business model should be protected by the anti-unfair competition law has not been clearly stipulated in China's laws at present, but the judicial practice reflects the attitude of protecting the business model. The Supreme People's Court once wrote in the judgment of the "3Q War": "This business model combining free platform with advertising or value-added services is the usual operation mode of the Internet industry when the dispute occurred in this case, and it also conforms to the staged characteristics of the development of China's Internet market. This business model does not violate the spirit and prohibition of the anti-unfair competition law. The appellee's behavior of seeking commercial interests should be protected, and others should not damage their legitimate rights and interests by improper interference. " But does this mean that destroying the business model will constitute unfair competition? I think the answer should beno. First of all, as far as the business model is concerned, it is essentially a business profit concept, a description and summary of how enterprises make money, and it belongs to the ideological category. However, the current legal system in China does not protect simple ideas, so video websites should not enjoy any legal rights over their business models. Secondly, as far as the relationship between business model and business activities is concerned, the author believes that there is an exterior-interior relationship between them. Contrary to the business model, business activities belong to the category of behavior and are the core of supporting the survival of enterprises. In other words, the business model is external and changeable, while the business activities are internal and stable. Business model is an externalized form of business activities, which shows that the two are not the same. A certain business behavior has an impact on a certain business model, which does not necessarily mean that it interferes with the business activities of others or even causes losses to others. Because the business model itself is constantly changing and updating, it needs to make active and effective responses according to the actual situation, which is also the embodiment of market competition. As far as the current mainstream online video website operation mode of "advertising+free video" is concerned, it is indeed facing the crisis of long advertising time and excessive investment, which leads to the decline of users' reputation and the loss of consumer groups, and the factors that make it change may appear at any time. It can be said that filtration technology is one of them. Moreover, the above operation mode of domestic video websites is not unique at present. Therefore, the author believes that it is not established to infer that the business model should be protected by law by destroying the legitimate business practices of others, and then to determine that the relevant behaviors are improper. To sum up, the author believes that the influence of a certain business behavior on the existing business model does not of course mean that the law should give a negative evaluation.
Of course, based on the consideration of stabilizing the market and maintaining the order of market transactions, the law can protect a certain business model to a certain extent, but the ultimate goal of this protection should be limited to protecting the legitimate commercial interests of operators. This is also the ultimate goal of the Supreme Court in the "3Q War" judgment. In fact, this is the substantive standard mentioned above, that is, the focus is on the nature of the behavior itself, whether it has caused damage to accountability. The impact on the existing business model cannot be used as one of the criteria to judge whether the browser with the function of filtering advertisements has the nature of unfair competition.
(C) the nature of filtering advertising behavior
Whether filtering advertisements violates the principle of good faith and recognized business ethics is the core issue. Because it directly points to the legitimacy of behavior.
1. The two concepts, the principle of good faith and accepted business ethics, are extremely abstract in themselves, and it is difficult to be directly used as a criterion. Therefore, scholars with positive views generally divide it into two aspects: whether it destroys the normal business activities of others and whether it improperly uses the commercial interests of others. However, scholars who hold opposing opinions mostly discuss the meaning of "rational economic man" and "business ethics" from the meaning of the words themselves, and do not make targeted refutation to scholars who hold positive opinions. The author thinks that the reasons such as "hitchhiking" can't be established because Jinshan's browser was not developed for Youku, but for the whole network. In other words, once you use this browser and turn on the advertisement filtering function, the advertisements of all websites supported by this function will be blocked. In this case, this browser market share is not so much to enjoy the commercial interests of Youku to a certain extent, but rather to firmly grasp the psychology of all people who want to watch free videos. In the current market environment, it is an inevitable event in the sense of probability for users to watch online videos. As for the number of users and market share of a specific video website, they are only two indicators, which cannot determine the degree of correlation. Even if there is a certain quantifiable relationship between them, what the law prohibits is the improper use of other people's commercial interests. Judging whether an operator's behavior has the nature of improper interference is mainly based on subjective and objective investigation, that is, judging whether the behavior has subjective malice. If the subjective malice is not obvious or difficult to prove, consider the objective effect of the behavior and make a comprehensive judgment according to the damage result and degree {5}. In the above case, because Jinshan Company's browser is not targeted, its advertising filtering function is turned off by default, so it is difficult to prove that it has enough subjective malice, and it is necessary to judge its nature from the perspective of objective damage consequences and interest measurement. In this way, whether the filtering advertising behavior violates the principle of good faith and recognized business ethics is transformed into a judgment on whether the behavior has caused responsible damage to the legitimate interests of others.