An Empirical Study on the Judicial Regulation of Unfair Competition in Data Scraping Behavior

Abstract

Currently, China's data-related legislation is still in the initial stage of gradual exploration. Due to the unfair competition disputes involving data capture with a variety of data types, complex technical means, capture behavior hidden and other characteristics, resulting in the judge in the trial of data capture cases mostly choose to apply the general provisions of the “Anti-Unfair Competition Law”, that is, the second article to be adjudicated, which makes the data capture behavior of the cases arising from the dispute is more and more, the data capture behavior whether it constitutes unfair competition, This has led to an increasing number of cases and disputes arising from data-scraping behavior. Therefore, this paper takes the data capture behavior as the research object, takes some typical cases as examples, discusses the adjudication results and thoughts of the cases, and in the process, finds that in the judicial practice of such dispute cases, there exists the difference of the applicable law, the judgment standard of the legitimacy of the data capture behavior is not clear, and the understanding of the damages caused by the unfair competition behavior of the data capture is not the same, and other problems. In view of this, in judicial practice, Article 2 and Article 12 should be clearly applied, and importance should be attached to the criteria for judging the legitimacy of data capture; finally, through the theory of balance of interests and the principle of proportionality, the interests of data platforms, consumer interests and public interests of the society involved in data capture should be taken into consideration, thus realizing the balance of interests of multiple parties, and achieving the balance between data protection and data flow through dynamic justice.