A law-based business environment is a key element in promoting economic and social development, and strengthening platform anti-monopoly supervision is an important part of optimizing the law-based business environment. In recent years, platform bans have occurred repeatedly in mainland China, which has had a certain impact on the competitive order of the platform market. Since platform banning is not a technical term in the legal sense, it is necessary to first clarify the form and connotation definition of platform banning. Platform bans are not absolute violations, and the principle of case-by-case analysis should be adhered to, and platform bans that may have the effect of harming competition should be analyzed through the regulatory path of refusal to trade in the Anti-Monopoly Law. In applying the analytical framework of traditional abuse of market dominance, due to the increasing ecology of the platform and the dynamic competition, there are difficulties in applying the objectives, logic and methods of anti-monopoly regulation, by drawing on advanced experience outside the territory and taking into account the characteristics of the development of the mainland's own platform economy, taking case analysis as the principle and effect analysis as the basis, adjusting the anti-monopoly regulatory methods, improving the means of redress, creating a fair and free competition environment, realizing the healthy and sustainable development of the platform economy, and continuing to create a first-class business environment based on the rule of law.
1. The practical logic of platform banning anti-monopoly to promote the rule of law in the business environment
Creating a business environment based on the rule of law is an important measure for China to further open up to the outside world, and it is also an intrinsic requirement for achieving high-quality development and modernizing the governance system and capacity. The rule of law is the best business environment, the business environment is the soil for the cultivation of the market economy, and the equal protection of the property rights and legitimate rights and interests of all types of market entities in accordance with the law is an inherent requirement for the sustainable development of the market economy. The ban on anti-monopoly on platforms will help protect fair competition in the market, safeguard the legitimate rights and interests of all market entities, and strengthen the interconnection between platforms, so as to create a fair, orderly, open and innovative business environment based on the rule of law.
(1) The significance of the construction of a law-based business environment
The Regulations on Optimizing the Business Environment, promulgated in 2019, made China the first country in the world to formulate specific administrative regulations to optimize the business environment at the national level, institutionalizing China's successful practices and practical experience in deepening the reform of "delegating power, delegating power, improving services" and optimizing the business environment since the 18th National Congress of the Communist Party of China, the 19th National Congress of the Communist Party of China, and the 20th National Congress of the Communist Party of China. The rule of law is the foundation and the key, which runs through the entire process of optimizing the business environment and is a solid guarantee for realizing marketization, facilitation and internationalization. In the current context of stabilizing the economy and promoting development, further building a high-level business environment based on the rule of law will help give market players stable expectations and stimulate their vitality.
(2) Platform banning and anti-monopoly is in line with the value orientation of the rule of law in the business environment
First of all, the rule of law in the business environment requires the partial transfer of platform rights under strong public attributes. Platforms with strong public attributes should bear more additional obligations in terms of protecting the legitimate rights and interests of users and the public interest, maintain a higher tolerance and openness in the face of competitive platforms, and should be appropriately modest when exercising the right to operate independently, and their independent management rights need to make corresponding transfers for consumers' right to make independent choices and the right to fair competition of other platforms, so as to avoid harming the legitimate rights and interests of other entities. Second, the ban on anti-monopoly by platforms helps to maintain fair competition in the market. In 2021, the State Administration for Market Regulation (SAMR) adopted an administrative guidance to encourage platforms to increase the openness of data resources such as data and applications within the platform, and actively promote cross-platform interconnection and interoperability. Finally, the ban on anti-monopoly by platforms is conducive to stimulating market innovation. Article 20, Paragraph 1, Item 1, and Article 33, Paragraph 3 of the current Anti-Monopoly Law in mainland China are provisions on encouraging innovation, and Article 3 of the Platform Anti-Monopoly Guidelines also encourages innovation as one of the principles of anti-monopoly supervision. In the relatively closed ecological environment formed by the ban, the innovation vitality and potential of other competitive platforms are seriously inhibited, and the innovative technologies that may be generated by the interconnection between platforms are hindered, and the national innovation-driven development strategy cannot be effectively implemented.
(3) The practical need for the rule of law in the business environment to ban and anti-monopoly platforms
To build a business environment based on the rule of law, it is first necessary to maintain market fairness, promote all-round opening up and establish a unified national market by strengthening anti-monopoly law enforcement of prohibited behaviors in the field of platform economy, and eliminate oligopoly and market segmentation Finally, it is necessary to improve the level of legal services, strengthen the construction of the sharing system for digital reform, clean up the laws and regulations that hinder data sharing and openness, promote the open sharing of non-core business data of enterprises, and actively give full play to the autonomous role of platform industry associations to create a safe, credible, inclusive and innovative, fair, open, and pluralistic and autonomous business environment based on the rule of law.
2. Clarify the premise of anti-monopoly regulation of platform bans
The rapid development of the platform economy has given rise to many platform monopolistic behaviors, among which platform blocking behavior is a relatively common behavior in the current Internet competition, but it is not a professional term in the legal sense, and before discussing whether it should be subject to anti-monopoly regulation and how to carry out anti-monopoly regulation, the manifestation and specific connotation of platform blocking behavior should be clarified.
(1) Accurate definition of platform bans
1. Typological manifestations of platform bans
According to the Anti-Monopoly Guidelines for Platforms, a platform is a business ecological organization that provides a place for bilateral or multilateral entities to interact through technical means, and according to the different purposes of the platform's implementation of the ban in practice, the platform ban behavior is mainly manifested in the following three types:
The first is to maintain the normal operation of the platform system. It is mainly manifested in the fact that the platform directly deletes the link of the corresponding part of the content, or deletes the link in accordance with the "notification of deletion" rule, so as to achieve the purpose of deleting or making the content invisible. For links that may cause infringement, the Platform may delete and block the infringing content in accordance with the Cybersecurity Law, the Internet Information Management Provisions and other content management needs, for example, the blocking of illegal accounts, the non-display of illegal content, and the removal of illegal products.
The second is to ban the products and services of this platform to achieve self-preferential treatment. It is generally manifested in the blocking of links or applications of other competitive platforms, that is, prohibiting links to the websites of other operators through technical means, which hinders users' identification and normal access to the links of other operators' websites, and will have a serious impact on the user experience. From the perspective of the degree of link blocking, link blocking behaviors can be manifested in the following three types: the first is completely exclusive link blocking, that is, it completely excludes the possibility of other operators spreading in the field of its platform; the second is restrictive blocking, that is, some restrictive measures are taken to increase access restrictions and increase the time cost of external links when external links are entered, which leads to a decrease in the sense of use of platform users and reduces the number of competitive platform uses; the third is negative blocking, that is, no direct interception, By refusing access or restricting external links, it is blocked by increasing access costs, increasing review time, increasing review links, and unable to access stably, etc., neither explicitly accepting external link access, nor explicitly rejecting external link access, but in fact, causing external links to not operate normally even after being connected to the platform, so as to achieve the effect of negative blocking.
The third is to restrict the ban on platform data sharing. In practical applications, the platform will block the data port and refuse to achieve data interconnection with other platforms. For example, in 2015, Hantao sued Baidu's search engine for scraping the information involved in the case on Dianping.com for violating the Robots agreement, and in 2019, Tencent sued ByteDance for failing to comply with the Robots agreement and scraping a large amount of data and information from the WeChat public platform. In addition, the platform also uses platform rules and operational specifications to implement data blocking, so as to realize the function of denying trading counterparties or competitors to promote and divert users to their own platforms, for example, Instagram and Twitter ban each other's certain functions of the other platform, and Sina Weibo sued Maimai for violating the previously signed Developer Agreement by using a large number of Sina Weibo user information that has not been registered as Maimai users.
2. The connotation of platform bans
The definition of the connotation of platform banning will be considered in combination with four aspects: the subject of platform banning, the implementation object, the implementation method, and the competitive nature of platform banning.
(1) Regarding the entity implementing the platform ban
Digital platforms have made the leap from intermediaries to platforms to platform ecosystems in terms of organizational form. Similar to large platform companies such as Tencent and Alibaba, mainland China has gradually formed its own ecosystem and continued to develop driven by the economies of scale of the platform and the advantage of a population of more than one billion. However, with the further development of the platform economy, the conflict and competition between platform enterprises are becoming increasingly fierce, from the perspective of competitive strategy, in order to give full play to the user stickiness and user traffic advantages formed by the lock-in effect of its original market, the ecosystem with social business as the core transmits its market power to new markets through cross-network externalities to expand its competitive advantage, and on the other hand, adopts blocking means to control the traffic entrance, so as to hinder the development of competitors in its ecosystem.
(2) Regarding the implementation of platform bans
Combined with the purpose of the platform ban, the platform ban usually refers to links to other competitive platforms, relevant content of operators on the platform, and platform user data. With regard to the blocking of the content of operators on the platform, in practice, it is generally believed that platform operators have the right to set reasonable management rules based on the needs of platform governance, and based on the rationality and legality of the platform's blocking of content, the implementation of platform blocking mainly focuses on the blocking of links and the blocking of data.
(3) Regarding the implementation of platform bans
In order to enhance its competitive advantage, the platform may adopt a variety of different monopolistic behaviors, and there may be a certain overlap space in the implementation of different monopolistic behaviors. Although platform bans have different targets and different means of blocking, they are all implemented through the platform to refuse the transaction requests of other platforms or operators, and there is only a difference in the degree of refusal between complete and incomplete ban, so according to the manifestation and purpose of the ban, it is closest to the refusal to trade in the Anti-Monopoly Law.
(4) The competitive nature of the ban platform's value to user traffic
In order to achieve longer-term development, the platform is often based on the high-stickiness users accumulated by the core business, and expands the complete ecological industry chain through the creation of its own platform ecosystem, carries out horizontal or vertical traffic expansion, enhances the closed loop of the ecosystem, and improves the drainage cost of competitors by building traffic entrances, weakening the competitive effectiveness of competitive platforms.
To sum up, the platform ban can be limited to the refusal to restrict the link or port access of competitors by using technical means or adding clauses in the process of operation, so as to refuse to share data or refuse competitors to use their own platform facilities.
(2) The boundary nature of anti-monopoly regulation of platform bans
Platform banning is a neutral competitive behavior, as a participant in the competition in the Internet market, the platform has the motive of profit-seeking, and the banning behavior is one of the ways for it to obtain more development space based on the expansion of its own business ecosystem, and it is also the embodiment of the platform's obligation to maintain the security of online transactions and user data. The "ban" of the platform does not necessarily mean that it is illegal, and the boundary of its regulation needs to be clearly explained.
The essence of the dispute over whether the platform ban needs to be regulated by the Anti-Monopoly Law is the value choice under the conflict between the platform's right to operate independently and the right to fair competition with other platforms, as well as the user's right to choose. On the one hand, other platforms hope that the platform can provide more value-added products and services on the basis of maintaining its openness based on its own development needs, but the excessive emphasis on openness will also damage the economic benefits and innovation efficiency of the product and service provision platform, and the market efficiency analysis under the anti-monopoly framework should maintain its neutrality. On the other hand, not all bans are imputable, and the impact of bans on the overall profit and loss of society should be judged before anti-monopoly regulations are imposed. For example, in the Google Shopping case, the U.S. Federal Trade Commission ultimately approved Google's actions because Google's manipulation of search results and restrictions on competitors' shopping services saved consumers time and costs in searches, and consumer interests were not necessarily compromised in general. Therefore, when judging its anti-competitive effect, comprehensive factors such as consumer interests, market innovation, and social and public interests should also be comprehensively considered.
As a means of competition, banning has its rational basis, but with the blessing of the characteristics of the platform economy, the phenomenon of "winner-takes-all" is prone to occur, especially for large platforms, with the support of the huge number of users and traffic data, gradually consolidating their market dominance, forming a multi-oligopoly competition pattern, and harming the market competition mechanism. At the same time, if a one-size-fits-all regulatory model is adopted to prohibit platform blocking, it will not only affect the vitality of market competition, but also hinder the innovation momentum of the platform。
3. The dilemma of anti-monopoly regulation of platform bans
It is necessary not only to protect the autonomy of platform operations and maintain their enthusiasm for production and creation, but also to open up the circulation channels of the platform market, safeguard fair competition in the market and the legitimate rights and interests of consumers, make the best use of data, and promote the development of the digital economy. From the perspective of the Anti-Monopoly Law, the reasonable regulation of prohibited acts is mainly to judge whether the relevant acts constitute an abuse of market dominance, and under the trend of platform ecology and dynamic competition, the objectives, logic and methods of traditional anti-monopoly regulations are difficult to apply.
(1) Difficulties in the application of anti-monopoly remedies for platform blocking
1. The dilemma of determining the market dominance of the banned platform
Clarifying the definition of the relevant market is the legal logical basis for clarifying the dominant market position, and in the past precedent practice, the traditional relevant market is usually defined by the demand substitution analysis method or the supply substitution analysis method, and when the scope of competition is difficult to determine, it can also be judged according to the method of "hypothetical monopolist test", but most of these methods are applicable to the offline market and rely heavily on the examination of price factors, while the platform is based on its cross-network externalities, Due to the development characteristics of economies of scale, the traditional price-centered market analysis method is not suitable for water and soil when it is applied, and the relevant market analysis methods need to be innovated urgently.
Article 18 and Article 19 of the Mainland Anti-Monopoly Law on the determination of market dominance are both important criteria for judging market share. However, under the impact of the dynamic competition characteristics of the platform market, the role of market share as a dominant position determination criterion has been weakened to a certain extent, and compared with market share, the market dominance in the platform market should consider factors such as network externalities, lock-in effects, and user switching costs. Conversely, if a platform enterprise has a small market share but has strong network externalities and high user stickiness, it is more likely to have a dominant market position.
2. The dilemma of determining the illegality of platform bans
Article 16, Paragraph 1, Item 5 of the Interim Provisions on the Prohibition of Abuse of Dominant Market Position (hereinafter referred to as the "Interim Provisions") further clarifies that "refusal to use essential facilities" is one of the statutory circumstances for refusal to trade. Article 14 of the Platform Anti-Monopoly Guidelines also provides for the determination of necessary facilities that may exist in the field of platform economy. The main reasons why the theory of essential facilities is difficult to be widely applied in practice are as follows: First, the application conditions of essential facilities are relatively strict. At present, it is generally accepted that the necessary facilities must be met such as "the necessary facilities are controlled by the operator and it is feasible for them to be provided to others, competitors cannot reproduce them, and the operator does not have a legitimate reason for refusing to use them to others". Second, the application of the essential facilities theory may inhibit the enthusiasm for platform innovation and development. Once the platform is identified as a necessary facility and requires open data, it will inevitably lead to a decline in its core competitiveness, which can easily lead to the behavior of other platform enterprises to take a free ride, resulting in a large number of homogenization of platform service products, and will also greatly damage the rights and interests of consumers and the long-term development of the overall competitive market, which is also not in line with the original intention of the Anti-Monopoly Law to promote the normal development of the industry through fair competition.
3. It is difficult to judge the competitive damage effect of platform bans
Article 14 of the Platform Anti-Monopoly Guidelines points out that the criteria for determining the harmful effect of a platform ban should reach the level of "it is difficult for the trading counterparty to carry out the transaction", and the Anti-Monopoly Law and its detailed rules do not make specific provisions on the effect of restricting and excluding competition. Second, it is necessary to analyze whether other competing platforms can effectively respond to the ban. If the ban significantly increases the cost of the competing platform, it can be determined that the act has the effect of eliminating and restricting competition, causing harm to competition. In the field of platform economy, service quality has gradually replaced price as an important factor in platform competition, so it is necessary to deeply understand the harmful essence of disrupting the order of fair competition in the market hidden behind the ban, and the existing anti-monopoly regulations are not only technically unable to achieve accurate and timely regulation of bans, but also cannot timely respond to the new legal interests to be protected by the anti-monopoly law.
(2) Limitations of anti-monopoly remedies for platform blocking
The core purpose of anti-monopoly remedies is to crack down on monopolistic behaviors and restore the order of free and fair competition in the market. Structural remedies refer to the redistribution of property rights of enterprises, and the ability of enterprises to implement monopolistic behaviors is weakened through two means: split remedies and divestiture remedies. Abuse of market dominance such as differential treatment, such as platforms based on the core business of social media or platforms that act as intermediaries, often bring about competitive risks that are difficult to eliminate for other competitive platforms due to their large structure, so it has been suggested that such platforms and their affiliated businesses should be remedied by splitting up. However, it is also important to consider that the development of such platforms and their related businesses is often related to the sustainability and stability of the development of the platform economy in mainland China, and the separation of the platform and its business will have a greater negative impact on the overall innovation of the platform economy. Another type of behavioral remedy mainly involves restricting the platform's freedom of trading and its forms of property rights, the most common being ordering the platform to cease the illegal act and take corresponding corrections, in addition to that, in some cases, in order to prevent the recurrence of monopolistic behavior, the platform will also assume an affirmative obligation to take positive action in a specific way.
The provisions of the Anti-Monopoly Law on legal liabilities related to abuse of market dominance are mainly embodied in Articles 57, 60 and 63, which specify three types of legal liability: fines, fines, In the practice of anti-monopoly law enforcement, relying only on the above-mentioned three methods of legal liability, over-reliance on fines, and lack of the right to impose affirmative obligations on behavioral or structural remedies for platform bans will lead to the platform's ban on anti-monopoly remedies falling into "punishment for punishment's sake" It is difficult to ensure the full realization of the goal of anti-monopoly remedies.
IV. The path to improve the anti-monopoly regulation of platform bans
Although the platform economy poses challenges to the implementation of the Anti-Monopoly Law due to its multilateral market, network effect, lock-in effect, etc., it is still necessary to follow the current anti-monopoly analysis framework in the process of continuous optimization when regulating the anti-monopoly of prohibited behaviors in the platform economy field, accurately define the specific case analysis based on the characteristics of the platform economy, and continuously adjust and optimize the specific definition standards, so as to provide transparent reference standards for platform operators to strengthen their compliance operations and maintain free and fair competition in the field of platform economy.
(1) Adjustment of the anti-monopoly law remedy rules for platform blocking
1. New ideas for defining the market related to platform banning
Under the two-sided market conditions, there is a cross-subsidy between the free services provided by the Internet platform and the paid services, that is, on the one hand, the long-term development of the free services is supported by the paid services, and on the other hand, the user base of the paid services is provided through the free services, so as to achieve overall profitability. Therefore, when defining the relevant market, it is necessary to follow the principle of combining the fee-based business with the free business, carefully consider the interaction between different businesses, examine the market segment where the platform ban mainly occurs, and define the relevant market with that side market as the main position. When the development of the platform economy enters a mature period and enters the full-service stage, and each Internet platform can provide various products and services, the definition of the relevant market for platform banning does not need to consider specific businesses, but can put many products and services provided by comprehensive Internet platforms into the same relevant market in the form of a product group. Therefore, different approaches to defining the relevant market should be adopted at different stages of the development of the platform economy.
For example, the relevant market can be defined by the profit model test. When adopting the profit model test method, only the profit model of the platform products needs to be paid attention to, and there is no need to pay attention to the complex situation such as the price changes of the platform products and services, which is conducive to the liberation of anti-monopoly law enforcement agencies and judicial authorities from the complicated analysis of prices and technical characteristics and improve the efficiency of law enforcement.
2. Improve the elements for determining market dominance in platform bans
Since the free strategy is generally adopted for Internet platform products, and the transaction process is difficult to identify and quantify, for the market share evaluation of Internet platforms, more attention should be paid to the traffic formed on the basis of a huge number of users and data, and its market share should be judged by the number of visits or views of the platform, or the market share of the platform should be evaluated and determined through the reports of neutral digital media evaluation companies and Internet traffic monitoring service agencies. At present, the mainland does not stipulate the user's right to data portability, which means that the platform has a strong control over the data, and the platform is very likely to exclude other operators, especially competing platforms, from obtaining the user's original data through banning, so that it is easier to achieve "winner-takes-all" in the competitive environment of the data-driven platform market.
3. Moderately relax the conditions for the irreplaceability of the theory of necessary facilities
In the Internet industry, it is usually difficult for both data and platforms to meet the first requirement of irreplaceability, which leads to the confusion of the theory of necessary facilities in the field of platform economy. Therefore, it is necessary to appropriately relax the irreplaceable criteria for determining essential facilities, and only require that if the platform implements a ban that will significantly affect the competition in the relevant market, then the platform can be identified as a necessary facility, and the relevant considerations for significant impact can include the impact of consumer dependence, the impact of service quality, and the impact of data possession. At the same time, in order to avoid inhibiting the innovation of the platform and harming the interests of the platform after relaxing the theory of necessary facilities, it is also necessary to comprehensively consider whether the identification of the platform as a necessary facility meets the requirements of the public interest, whether it will cause obvious and undue impairment of the platform's interests, whether it needs to bear extremely high technical costs, and whether it can fully guarantee the independence and integrity of the necessary facilities and the security of user data and information.
4. Construct comprehensive standards for the harmful effects of platform bans
According to Article 1 of the Anti-Monopoly Law, as amended in 2022, the value objectives upheld by the Anti-Monopoly Law are no longer limited to the traditional value of fairness and efficiency, but also expanded to value areas such as industrial innovation and consumer protection. The value diversification of the Anti-Monopoly Law will inevitably create contradictions between value objectives, so it is extremely necessary to establish a comprehensive judgment standard for the effect of damage. The examination of the effect of restricting and excluding competition from platform bans is not only limited to whether the specific interests of a competitor are harmed, but should also be extended to examine whether the fair and free market competition mechanism is harmful, and whether the public interest, Whether there is an imbalance between the interests of consumers and the interests of the platform, so the illegal standard of the competitive damage effect of the platform's implementation of the ban can be evaluated from the following three aspects: first, from the perspective of economic efficiency, consider whether it is feasible for the platform to open external links or data sharing, second, consider the impact on the welfare of consumers, and third, fully consider the impact of the platform's banning on the efficiency of market innovation.
(2) Improvement of anti-monopoly relief mechanisms for prohibited acts in the platform economy
1. Combine behavioral and structural remedies to enrich ex-post regulation
In order to better balance market innovation, consumer welfare, and platform incentives, behavioral remedies and structural remedies can be fully combined to reshape the market competition structure by divesting assets and splitting businesses. For example, in the EU's gatekeeper system, in the event of a systematic violation of the law, the European Commission can strengthen its supervision by splitting up the enterprise or divesting the dominant business, in addition to taking behavioral remedies such as fines. Affirmative obligations may also be imposed on gatekeepers, such as that any transaction carried out by a gatekeeper, even if it does not meet the criteria for declaration or does not affect trade between Member States, must be declared to the European Commission, and the gatekeeper must fully comply with the obligations of the list, including essential obligations and obligations determined by agreement.
On the one hand, the development of large-scale platforms can drive employment, form new business formats, and promote new economic growth points, and on the other hand, the continuous innovation of large-scale platforms can also enhance the international competitiveness and international influence of the mainland. Therefore, it is necessary to be more cautious when imposing structural remedies on them, but this does not mean that the anti-monopoly law enforcement authorities should abandon this catch-all regulatory measure, but at the same time, enhance the deterrent effect of anti-monopoly regulation by setting up structural remedies, and effectively deal with the situation of platforms controlling traffic entrances and raising market entry barriers through banning behaviors by combining them with behavioral remedies such as ex-post fines and ex-ante affirmative obligations, so as to balance the relationship between market efficiency and market fairness, and maintain the stable and long-term development of the platform economy.
2. Complete mechanisms for platform data openness to achieve prior regulation
With the continuous development of the platform economy, in order to promote the active participation of mainland platforms in international competition and cooperation, the anti-monopoly regulation in the field of platform economy should adhere to international standards, learn from advanced regulatory experience, and learn from the "gatekeeper" system proposed by the EU to impose an open obligation on the platform. Platforms subject to the obligation of openness shall be dominated by large platforms and super platforms, and the standards for platform classification in the Guidelines for the Classification and Grading of Internet Platforms (Draft for Comments) may be used as a reference to implement the obligation of data openness to large platforms and super platforms. Consumers and the market order have a huge negative impact, and it is necessary to establish qualitative and quantitative standards for platforms that impose open obligations when selecting specific platforms that impose open obligations. Regarding the qualitative criteria for the platform, you can refer to the relevant rules of the European Union, including that the platform has a significant impact on the internal market, As an important way for business operators to reach consumers and enjoy a stable and lasting business position, and the quantitative standard is based on the difference between the market value of mainland platform enterprises and foreign Internet enterprises, the market value may not be considered in the quantitative standard, and the turnover may be examined as an indicator to measure the market influence of the platform enterprise, and the enterprise group to which the platform product and service provider belongs shall be taken as the accounting object, and a certain financial year shall be taken as the inspection period.
In order to better balance the relationship between platform enterprise innovation and market innovation, it is necessary to provide relevant protection measures for platform opening after imposing an opening obligation on the platform, and establish corresponding grievance, response, and regular review and update mechanisms. In addition, the platform shall also be given the right to review the intervening object, review the purpose of the access of the connected access object, and conduct real-time supervision of the conduct after the link is accessed, to prevent it from stealing or leaking the information and data of the platform users, and seeking unfair competition interests, and may give the platform the corresponding right to refuse if the "free-riding" link access object affects the platform's core competitive interests. At the same time, the cost of platform opening should also be taken into account, and the corresponding platform opening incentive mechanism can be established to allow the platform to charge a certain reasonable fee for link access enterprises at different levels, so as to better protect the platform's innovation ability and make up for the large sunk costs invested by the platform for development。 Finally, give the platform the right to withdraw from the opening. When the platform believes that it no longer meets the open standards, it can raise relevant objections and withdraw after review by law enforcement agencies, which can not only protect the platform's right to operate independently to the greatest extent, but also better promote the continuous innovation and development of the platform economy.
In addition, in view of the complexity of platform bans and the lag of supervision, anti-monopoly law enforcement agencies can also introduce blockchain technology to require platforms with open obligations to link access objects, reasons for refusal and other data on the regulatory platform in real time, and combine the number of platform users, the number of access merchants, Transaction data and other competition coefficients are to be dynamically supervised in real time on platform behavior, and a whitelist is given to platforms that actively perform their opening obligations, and blacklists are given to platforms that passively respond to opening obligations, and different degrees of supervision methods and incentives and punishments are implemented according to different lists.
3. Improve the rules of evidence for platform anti-monopoly litigation to achieve relief
There is an obvious imbalance in the distribution of the burden of proof in anti-monopoly litigation for platform bans, and in order to better realize the protection of the rights of disadvantaged entities and the fairness of the distribution of the burden of proof, the distribution of the burden of proof should be adjusted to appropriately reduce the burden of proof on the banned party. First of all, the court should take the initiative to investigate and collect evidence related to the ban on the platform when necessary, so as to alleviate the problem of excessive burden of proof on the plaintiff. The accuracy of the assessment directly affects the fairness of the adjudication results, and then affects the rights and interests of other business operators and consumers in the relevant market, and ultimately affects the realization of the public interest. Therefore, in the face of anti-monopoly litigation on platform banning, the court should strengthen the right to collect and investigate evidence, and can also invite third-party professional institutions to conduct analysis related to market structure and competition structure based on difficult issues in the process of platform ban trial, so as to reduce the burden of proof on the banned party and improve the efficiency of litigation. In addition, platforms with strong public attributes should bear more additional obligations in terms of protecting the legitimate rights and interests of users and the public interest, and apply Article 9 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopolistic Acts when determining the dominant market position of the platform, so as to reduce the burden of proof on the plaintiff for the ban of the platform. In addition, the burden of proof can also be shifted, where the plaintiff provides prima facie evidence of the platform's banning and competition damage to prove that the defendant has the possibility of violating the law, and the burden of proof is shifted to the defendant, and the platform provides relevant evidence to the contrary to prove that it did not carry out the ban or that the ban did not cause competition damage. The shift of the burden of proof not only reflects the appropriate consideration of the weak plaintiff, but also facilitates the defendant's self-defense through the judicial process and balances the legitimate interests of all parties.
The mainland does not directly stipulate the standard of proof for anti-monopoly civil litigation, and it is generally believed that it is based on the high probability standard in Article 108 of the Interpretation of the Civil Procedure Law, and the high probability standard is set too high for anti-monopoly litigation in the field of platform economy, and it is difficult for plaintiffs who are weak in terms of evidence collection and market investigation to submit corresponding evidence, or the evidence presented cannot prove that the facts of the ban are clear and the effect of harming competition is indeed sufficient. Therefore, the preponderance of evidence standard can be used as a reference, and the evidence provided by the plaintiff does not need to reach the level of being very confident to the judge, but the judge analyzes and compares the evidence provided by the original defendant and the defendant, as long as the evidence provided by one party can make the judge confident that it is more reliable than the other party, then the evidence presented by the party is completed, and its corresponding litigation claims can be supported. In anti-monopoly litigation on platform blocking, the degree of preponderance of evidence is related to the degree to which the facts of the ban and the effect of the damage to competition are consistent with the objective, and the standard of proof of preponderance of evidence is conducive to improving the burden of proof mechanism for anti-monopoly lawsuits related to platform blocking, making up for the difficulties in determining the facts related to the abuse of market dominance by the banned platform, and maintaining a platform development environment of full and fair competition.
epilogue
For the discussion of the illegality of platform bans, the principle of case analysis should be adhered to, and generalizations should not be generalized, and the illegal acts of banning that may cause competition harm should be analyzed through the regulatory path of refusal to trade in the Anti-Monopoly Law, and comprehensive consideration should be made from the aspects of the platform's dominant market position, the determination of refusal to trade, the judgment of competition damage, and the legitimacy of the defense, so as to determine the illegality of the ban, which is currently a more appropriate way to regulate the anti-monopoly behavior of platform bans. When carrying out anti-monopoly regulation on prohibited behaviors in the field of platform economy, it is necessary not only to improve the regulatory effect of the current analytical framework for abuse of market dominance, but also to fully grasp the spirit of anti-monopoly legislation and competition policy. With the continuous development of the Internet platform economy, the manifestations of platform banning behaviors have also changed, and new types of platform monopoly behaviors will emerge in our daily life one after another.