Zhai Wei: Data resources should be regarded as public property and need to be strengthened

"Data monopoly, it is difficult to get comprehensive, careful and effective regulation, the key is that we do not give a clear definition of the basic rights of data." Associate Professor Zhai Wei, executive director of the Competition Law Research Center of East China University of Political Science and Law, believes that the nature of rights is unclear, resulting in illegal acts of abusing data resources, which is difficult to effectively regulate.

In the academic community, there are views that learn from the experience of the EU General Data Protection Regulation. In this regard, Zhai Wei said that the EU General Data Protection Regulation is too advanced, while many Internet companies have withdrawn from the European market, which proves that the regulations are not in line with the current development. "For China, the regulation of data monopoly can be formulated in the near future, but this should be very relaxed and cannot learn from the EU template." He said.

In the concept of EU scholars, data resources involve social public interests, so data resources belong to public property and cannot be privately owned by anyone. "I think we can learn from this model, and for some Internet platform companies that occupy a lot of data resources, we can regulate from the perspective of strengthening supervision." Zhai Wei said that a large number of data resources are not private property, but public property, and the regulatory authorities should proceed from the perspective of public interest, and the collection, management and distribution should be supervised by the regulatory authorities to ensure that all acts are in line with the public interest.

Returning to the domestic perspective, in the past two or three years, the domestic legal circles have had a very heated discussion on the application of the anti-monopoly law on Internet platforms. In Zhai Wei's view, the improper acts committed by Internet platform enterprises may violate the Anti-Monopoly Law, may also violate the Anti-Unfair Competition Law, and may also violate the Consumer Rights and Interests Protection Law.

According to reports, under the vision of the Anti-Monopoly Law, monopoly behavior includes three situations, such as business operators reaching monopoly agreements; business operators abusing their dominant market position; and concentration of undertakings that have or may have the effect of eliminating or restricting competition.

For data monopoly behavior between Internet companies, it can be analyzed from the perspective of anti-monopoly law. Taking Tencent's blocking of Feishu as an example, from the analysis of Article 17 of the Anti-Monopoly Law, it first involves the monopoly behavior of abusing the dominant market position, whether from the perspective of traditional market share definition or the latest definition standard of Internet market share, Tencent enterprise WeChat should be considered to have a relevant market dominance position. From the perspective of traditional market share definition, that is, article 18 of the current anti-monopoly law, Tencent enterprise WeChat has a dominant market position in the market related to enterprise collaborative office. Considering the scale effect and lock-in effect of the Internet economy, Tencent should be presumed to have a dominant market position in the market related to enterprise collaborative office. If you continue to use this market dominance to crowd out competitors and exert pressure on counterparties, this is prohibited by anti-monopoly law. He mentioned, "Because the operators of the Internet platform and the operators in the platform belong to the upstream and downstream vertical relationship, if the Internet platform operators take advantage of their relatively advantageous position and take advantage of the dependence of the operators in the platform to force these downstream enterprises to sign corresponding agreements to eliminate and restrict competition, it constitutes the act of signing vertical monopoly agreements, which is also prohibited by the Anti-Monopoly Law." Zhai Wei said.

For the concentration of undertakings under the Anti-Monopoly Law, some Internet companies, although they do not occupy a huge market share, but they have a large number of data resources, which is a crucial core factor for future competition, but the Anti-Monopoly Law has no relevant regulations on this. Zhai Wei suggested that the anti-monopoly law should carry out special supervision over the concentration of operators who have a large number of data resources.

In Zhai Wei's view, the anti-unfair competition law also involves data monopoly. Article 12 of the Anti-Unfair Competition Law is also called "Internet Article" by industry insiders. It stipulates that business operators using the network to engage in production and business activities must not maliciously implement incompatibilities with network products or services lawfully provided by other business operators. For example, in the Tencent ban on Feishu incident, the former used technical means to completely ban the remote office products legally provided by competitor Feishu Company, so it constituted a disguised form of incompatibility. Internet articles are also one of the main legal tools to regulate the misconduct of Internet platform enterprises. But where is its weakness? If the Internet platform enterprise does not use network technology, it cannot apply this article, so the scope of application of this article is also limited. He said.

The E-commerce Law stipulates that e-commerce platform operators must not use service agreements, trading rules, technology and other means to unreasonably restrict or attach unreasonable conditions to the transactions of business operators within the platform, the transaction price, and transactions with other business operators, or collect unreasonable fees from business operators on the platform.

In Zhai Wei's view, this clause belongs to the framework clause, which lacks the rigidity of the law, especially the lighter responsibility for setting the consequences, resulting in its effect in practice being discounted.

"If an enterprise infringed by the unlawful acts of an Internet platform enterprise uses the Anti-Monopoly Law to file a civil tort lawsuit, the legal liability of the Internet platform enterprise that implements the monopoly is greater after losing the lawsuit, so the deterrence is greater, but the cost of protecting the rights of the enterprise initiating the lawsuit is also very high." Zhai Wei said that for the current data monopoly behavior, different laws should be selected according to the specific circumstances of each case.