Today (May 11), in order to prevent and stop online unfair competition, maintain the market order of fair competition, encourage innovation, protect the legitimate rights and interests of operators and consumers, and promote the healthy and sustainable development of the digital economy, the State Administration for Market Regulation officially issued the "Interim Provisions on Online Anti-Unfair Competition", which will come into force on September 1, 2024.
The "Provisions" have five chapters and 43 articles
What are the main contents of the "Provisions"? The Provisions consist of five chapters and 43 articles, which are divided into General Provisions, Online Acts of Unfair Competition, Supervision and Inspection, Legal Liability and Supplementary Provisions.
The "Provisions" clarify the overall requirements, with the basic goals of maintaining the market order of fair competition, encouraging innovation, protecting the legitimate rights and interests of operators and consumers, and promoting the standardized, healthy and sustainable development of the digital economy.
The "Provisions" comprehensively sort out and enumerate online acts of unfair competition. Based on the complex and changeable characteristics of online competitive acts, the Provisions classify and refine online unfair competition acts, and clarify the criteria for their determination. The first is to clarify the new manifestations of traditional unfair competition behaviors such as counterfeiting and confusion and false propaganda in the online environment, regulate hot issues such as swiping orders and speculation, praise and cashback, and strive to eliminate blind spots in supervision. The second is to refine the online unfair competition acts regulated by anti-unfair competition laws and regulations, and enumerate the manifestations and identification factors of traffic hijacking, malicious interference, and malicious incompatibility. The third is to regulate new types of unfair competition behaviors carried out by technical means, such as reverse order farming, illegal data acquisition, and discriminatory treatment. At the same time, a catch-all clause is set up to provide a regulatory basis for new problems and new behaviors that may arise.
The "Regulations" require that platform responsibilities be strengthened, and platform enterprises grasp massive amounts of data and connect a large number of entities, which is not only a key object of online unfair competition supervision, but also a key node of collaborative supervision. The Provisions highlight the main responsibilities of platforms, urge platform enterprises to strengthen the regulation and management of competitive behaviors within the platform, and at the same time regulate issues such as the abuse of data algorithms to gain competitive advantages.
In view of the characteristics of online acts of unfair competition, such as wide coverage, cross-platform, and cross-regional, special provisions are made on supervision and inspection procedures, and jurisdiction is determined based on the connection points of major cases. Establish an expert observer system to provide intellectual support and technical support for resolving difficult issues in online unfair competition cases.
Give play to the role of laws and regulations in the field of market regulation, and effectively link up with laws such as the E-commerce Law, the Anti-Monopoly Law, and the Administrative Punishment Law within the framework of the Anti-Unfair Competition Law. At the same time, the legal responsibility for confiscation of illegal gains is clarified, and the effect of supervision is strengthened.
Interpretation 1: The "Provisions" aim to improve and clarify the "traffic light" rules for online competition
The relevant person in charge of the State Administration for Market Regulation said that fair competition is the key element and a strong driving force to accelerate the construction of a unified national market. Anti-unfair competition plays a fundamental role in maintaining fair competition and has a bearing on the basic level and quality of the market economy. On the one hand, with the rapid development of the digital economy in the mainland and the iteration of information technology innovation, traditional unfair competition behaviors such as counterfeiting and confusion, false publicity, and commercial defamation use Internet technology to renovate, and new types of online unfair competition behaviors such as reverse order brushing and illegal data acquisition are more hidden, hindering the improvement of economic operation efficiency, restricting the free flow of goods and factors, fair competition, and restricting the formation of a unified national market. In this regard, it is urgent to strengthen the governance of fair competition and continuously improve the efficient, complete, transparent and predictable normalized regulatory mechanism. On the other hand, the adjustment of the global competition pattern is accelerating, a new generation of economic and trade rules is taking shape, and institutional competition has become an important part of international competition. Other countries and regions have made a series of new institutional arrangements for the digital economy, and anti-unfair competition has become an important focus of international economic and trade rules. In this regard, it is urgent to strengthen forward-looking dynamic research, promote the integration of the mainland's competition policy with international rules, improve the trade and investment environment, and continue to deepen the institutional opening up in the field of competition.
The State Administration for Market Regulation formulated and issued the "Provisions" on the basis of in-depth research and demonstration, full solicitation of opinions, and repeated revisions and improvements. The "Provisions" aim to clarify the guidance and draw a clear bottom line for all types of business entities by improving and clarifying the "traffic light" rules for online competition behaviors, ensuring the efficient and orderly operation of the market competition mechanism on the track of the rule of law, guiding digital technology to better empower, and leading the continuous improvement of the competitiveness of the mainland.
Interpretation 2: Encourage innovation, standardize competition, and adhere to problem-oriented
What are the main principles followed in drafting and formulating the Provisions? The relevant person in charge of the State Administration for Market Regulation said that the first is to insist on encouraging innovation. Protect the innovation achievements of enterprises, and strive to promote the Internet industry to maximize its innovation potential. The second is to persist in standardizing competition. Guarantee fair trade between business entities of different scales, promote the coordinated development of various enterprises, prevent disorderly competition, and strive to create a good market environment. The third is to adhere to the problem-oriented. Proceeding from the strategic perspective of building a new national competitive advantage, and aiming at the focus of contradictions that urgently need to be regulated, efforts should be made to improve the standards and regulatory requirements for the identification of online acts of unfair competition. Fourth, adhere to an open vision. Serve high-level opening-up, enhance the forward-looking, targeted and effective system supply, and strive to build a fair competition system that is in line with high-standard international rules.
Interpretation 3: Clarify the provisions of the law for new types of unfair competition in the online field
What measures do the Provisions propose to address new types of unfair competition in the cyber sector? The Provisions refine the constituent elements and identifying factors of online unfair competition in the Anti-Unfair Competition Law, which is conducive to a more comprehensive study and judgment of the unfairness of the acts involved, and avoids improper interference in free market competition, which may lead to the obstruction of technological development and innovation. The Provisions enumerate online unfair competition behaviors such as reverse order farming, malicious interception or blocking, illegal data acquisition, and unreasonable restrictions or unreasonable conditions imposed by platform operators on operators on the platform, and clarify the applicable provisions of the law.
The relevant person in charge of the State Administration for Market Regulation pointed out that the "Provisions" are an important institutional guarantee to guide the orderly competition and innovative development of various business entities, and will come into force on September 1, 2024. In the next step, the State Administration for Market Regulation will increase publicity and interpretation, strive to create a good atmosphere of public opinion, so that all sectors of society and all kinds of business entities can quickly understand and grasp the main content of the "Provisions", guide all kinds of entities to enhance their awareness of legal compliance management, improve the construction of the compliance system, and adjust business behavior in a timely manner. At the same time, the State Administration for Market Regulation will increase the guidance of the law enforcement work of local market supervision departments, formulate law enforcement guidelines in a timely manner, and improve the level of grassroots law enforcement personnel in accordance with the law.
Text/Beijing Youth Daily reporter Lin Lishuang
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