The two sessions will be discussed
From regulating the chaos of "two choices one" of the platform, to the lifting of the exclusive copyright of online music, the suspension of the merger of the two major live broadcasting platforms, and then to the retrospective investigation and handling of a number of cases of "rushing away" of business operator concentrations, the anti-monopoly law enforcement actions of the platform will be frequent in 2021.
On March 5, Zhang Jiangli, associate professor of the Law School of Beijing Normal University, visited the live broadcast room of the "Two Sessions and Everyone Talks" in Nandu to share observations on the anti-monopoly trend of the platform. When talking about the anti-monopoly law being revised, Zhang Jiangli said that in view of the integrated and abstract nature of the anti-monopoly law, straightening out the basic logic of the anti-monopoly law is an important direction for the revision of the law.
The Anti-Monopoly Law indirectly protects the interests of consumers
For ordinary people, last year's vigorous anti-monopoly storm on the platform was like a distant thunder. Whether it is the sky-high fines of hundreds of millions of dollars or the huge Internet giants, it seems that there is a certain distance from people's daily life. In fact, antitrust has an important impact on every ordinary consumer.
"Improving consumer welfare is actually one of the ultimate goals of the anti-monopoly law," Zhang Jiangli said, "but the anti-monopoly law mainly protects the interests of consumers by maintaining the order of market competition." ”
In this regard, Zhang Jiangli gave a further explanation. In view of the common problems of contract fraud and information opacity, the Contract Law, the Consumer Rights and Interests Protection Law and other laws can be directly applied to safeguard the rights and interests of consumers. However, the threshold for the application of the Anti-Monopoly Law is relatively high, and the objects of regulation are mostly operators who occupy a dominant market position, and the evaluation of the behavior of these large enterprises needs to analyze the effect of the competitive behavior of the operators, especially to see whether these behaviors can improve production efficiency and allow consumers to share benefits. Safeguarding consumers' right to choose is also an important consideration for the Anti-Monopoly Law to determine whether the behavior of large enterprises is legal.
It is worth mentioning that in 2020, Nandu Anti-Monopoly Frontier launched a questionnaire survey, and 74% of respondents said that "choosing one of the two" caused a reduction in the choice of goods or services on the platform, thus limiting their choices.
In 2021, this chaos that plagues consumers will be regulated. The State Administration for Market Regulation has successively announced three platform "two-choice one" punishment cases, sounding the alarm for other market entities. At the end of the year, Gan Lin, deputy director of the State Administration for Market Regulation, said that the "two choices one" behavior in the e-commerce field during the "618" and "Double 11" periods basically stopped.
The anti-monopoly regulatory system of "big data killing" still needs theoretical convergence
When the "two alternatives" chaos is over, what other platform hotspot issues need to be responded to urgently by the regulator? At the meeting, Zhang Jiangli mentioned issues such as "big data killing", "strangulating mergers and acquisitions" and "algorithm collusion".
For the controversial "big data killing", Zhang Jiangli pointed out that if it is to be regulated through the anti-monopoly law, it is still necessary to achieve theoretical convergence. "Big data ripening" and "personalized pricing" are similar to price discrimination, and under the traditional anti-monopoly framework, the regulated price discrimination mainly points to operators rather than consumers, which is "exclusive" behavior, so it is more difficult to directly regulate "big data killing" for end consumers.
In addition, she believes that how to intervene in corporate algorithms and how to achieve the mutual cooperation of anti-monopoly law and other laws still needs to be treated with caution.
As for "strangulation mergers and acquisitions", Zhang Jiangli said that in practice, it should be distinguished whether large platforms buying start-ups is simply to "kill new competitors in the cradle" or to seize opportunities for existing competitors. Not only that, she also pointed out that how to adjust the criteria for declaring concentrations of undertakings to adapt to the new formats and models of the platform economy, and whether the relief for "stifling mergers and acquisitions" is to make mergers and acquisitions invalid or spin-offs need to be further improved.
In addition, Zhang Jiangli also said that with the continuous development of algorithms and technologies, the issue of platform enterprises implementing "algorithm collusion" unified pricing is also worthy of attention.
Anti-monopoly law is integrated and should rationalize the basic logic
In response to the difficult problems of digital economy supervision, the anti-monopoly law (draft amendment) currently takes data and algorithms into account. At the same time, documents such as the Anti-Monopoly Guidelines on the Platform Economy and the Several Opinions on Promoting the Healthy and Sustainable Development of Platform Economy Norms have also been introduced.
Speaking of the revision of the law, Zhang Jiangli believes that in view of the integrated and abstract nature of the anti-monopoly law, an important direction of the current revision of the law lies in straightening out the basic logic of the anti-monopoly law, and also clarifying the relationship between the anti-monopoly law and other relevant laws.
Taking the abuse of administrative power to eliminate and restrict competition as an example, Zhang Jiangli suggested abolishing the legal requirement of "abuse of administrative power". She believes that the anti-monopoly law should focus on whether the administrative acts involved in the case have the effect of eliminating and restricting competition, rather than whether the acts involved in the case abuse the powers granted by other laws to administrative subjects. The interrelationship between the Anti-Monopoly Law and other laws needs to be reconciled through the exemption system.
Zhang Jiangli also noted that under the bilateral market effect of the platform, the direct interaction between platform enterprises and consumers has increased greatly compared with traditional enterprises, and the situation that platform decisions directly affect or exploit consumers has also occurred. "However, whether these issues are completely handed over to anti-monopoly regulations or redistributed between anti-monopoly regulations and other legal regulations is still being studied and developed by academic circles."
Written by: Nandu reporter Huang Liling