Since September this year, the "Interim Provisions on Online Anti-Unfair Competition" (hereinafter referred to as the "New Regulations") has been officially implemented, clarifying that "praise and cashback" and "swiping orders and speculating on credit" and other behaviors are illegal, and merchants may face administrative penalties such as fines and revocation of business licenses, and individuals involved in swiping may also face legal risks.
01
Regulate acts of unfair competition
Strengthen the responsibilities of platform operators
According to Judge Mai Yinghua of the First Comprehensive Trial Division of the Guangzhou Internet Court, the purpose of the new regulations is to 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. Its biggest highlight is to focus on the Internet ecology, define the new types of unfair behaviors that have emerged in the current context of the Internet economy, and clarify the legal liability for online unfair competition. Under the framework of the Anti-Unfair Competition Law, the E-Commerce Law, the Anti-Monopoly Law, the Administrative Punishment Law and other laws are effectively linked, and the legal liability for confiscation of illegal gains is clarified.
"Specifically, the new regulations regulate traditional unfair competition behaviors such as counterfeiting, confusion, and false publicity in the online environment, as well as new types of unfair competition behaviors that have emerged in recent years, such as swiping orders and speculation, and praise and cashback." Mak Yinghua said.
For platform operators, Mak believes that the new regulations strengthen their responsibilities, stipulating that platform operators should strengthen the standardized management of intra-platform competitive behavior, regulate the abuse of data algorithms to gain competitive advantages, and prevent the use of their dominant position to carry out "self-preferential treatment" and forced "either-or" behaviors.
After the promulgation of the new regulations, if a merchant violates the regulations, the market supervision and administration department will impose penalties, including but not limited to ordering to stop the illegal act, confiscating illegal gains, imposing fines, revoking business licenses, etc. At the same time, if a merchant violates the provisions and causes damage to others, it shall also bear civil liability in accordance with the law.
02
Be vigilant when shopping online
Resist any fraudulent trading practices
In fact, the "praise cashback" set by merchants is not only to give consumers a little "sweetness", but also to appease consumers' dissatisfaction with "wrong goods" in many cases, or it may be a trap. It is understood that the new regulations clearly stipulate that operators shall not induce users to make designated praise, likes, directional votes and other interactive behaviors by means of cashback, red envelopes, cards and coupons, etc., and make false or misleading commercial promotions on commodity production and operation entities, commodity sales status, transaction information, business data, user evaluations, etc., to deceive and mislead consumers or the relevant public. Consumers may report such conduct to the market regulation department. "According to the provisions of the Law on the Protection of the Rights and Interests of People's Republic of China Consumers, if there is evidence to prove that the operator has made false publicity about the goods through the implementation of the 'praise and cashback' behavior, causing consumers to express their intentions based on misunderstanding, the consumer also has the right to claim that the operator shall bear the liability for punitive damages on the grounds that the operator has constituted fraud." Mak Yinghua said. In addition, the new regulations regulate the false advertising of business operators to fabricate data and information related to business such as transaction volume, transaction volume, and reservation volume. For example, false transactions such as online order swiping, which are common in daily life, have also been negatively evaluated in past judicial practice. The public should consciously resist participating in false transactions such as "swiping orders" in their daily lives, be vigilant in online shopping, and carefully screen the authenticity of commodity transaction data.
03
Be vigilant about positive reviews and cashbacks
For the implementation of the new regulations, Guangdong lawyer Yang Zhidong also agrees. He believes that the content of the new regulations is clearer, more guiding for merchants and platforms, and more conducive to consumers to understand and use to protect their own rights.
"The new regulations encourage and protect social supervision, and individuals also have the right to report suspected online unfair competition to the market regulation authorities in accordance with the law. These provisions will help maintain the market order of fair competition, protect the legitimate rights and interests of consumers and operators, and promote the healthy development of the digital economy. Yang Zhidong said.
Yang Zhidong also believes that for the "praise cashback" and other behaviors that induce users to make designated praise, the majority of consumers need to participate together in order to effectively crack down, and consumers should improve their awareness of self-protection and not trust the inducement of merchants.
"In these ways, consumers can protect their legitimate rights and interests, and at the same time, they can also help to clean up the market environment and promote fair competition." Yang Zhidong said.
Typical case: The contract of helping merchants "brush sales and earn remuneration" is invalid, and 20,000 yuan is lost
Yang Moumou is a young man who likes to look for opportunities to make money online.
One day, he stumbled upon an e-commerce company that was looking for people to help boost store sales. The other party promised to get a reward for every "fake purchase" completed. Yang Moumou was moved, so he signed an online shopping contract with the company and paid 20,000 yuan in advance.
In fact, both sides are well aware of this kind of "sales and pay" behavior, and the transaction between them is not really based on the demand to buy goods, but to create the illusion of sales boom, so as to attract more real customers.
However, after Yang Moumou carried out a series of operations in accordance with the company's methods, he did not receive the due remuneration, so Yang Moumou sued the company in court and demanded the return of 20,000 yuan.
Result: The Guangzhou Internet Court held that this information network sales contract was intended to cover up the true intention of "brushing sales and earning remuneration" with false online shopping, which was a collusive and hypocritical act under Article 146 of the Civil Code of the People's Republic of China. Since the two parties conspired to jointly carry out the act of "brushing sales", lacking a true expression of intent, and causing damage to the online business environment, the court did not protect the money "invested" by the plaintiff for the purpose of earning remuneration for brushing.
In the end, the court ruled that the contract was invalid and rejected the plaintiff Yang's claim for the defendant to return 20,000 yuan in accordance with the law.
The new media account was attracted by employees without authorization
Compensation of 100,000 yuan for infringement of online virtual property rights
The company soon found the clue: those articles after clicking on the jump had the same content as the original text, but the proceeds fell into Zhao Moumou's pocket. Therefore, the company believed that Zhao Moumou had stolen the income of the "traffic master" belonging to the company and seriously damaged the interests of the company, so he sued the court and demanded that he compensate for the loss of 202,470.24 yuan. Result: The Guangzhou Internet Court held that the company's for-profit account had a certain value, had property interests, and was a virtual property on the Internet, and was protected by law in accordance with the law. On the one hand, Zhao's behavior will divide the fans and traffic accumulated by the account, resulting in a decrease in economic value; On the other hand, the nature of the chain is similar to that of commercial advertising, which requires the company's permission and the corresponding remuneration, and Zhao's private chain transfer has made the company's commercial gains that the company should have obtained in vain, infringing on the company's rights and interests in the network virtual property enjoyed by these accounts, and should be liable for losses. Comprehensively considering factors such as Zhao's benefits from the infringement involved in the case, the court decided that Zhao Moumou should compensate a cultural limited company for losses of 100,000 yuan.
Source: Guangdong Law Popularization, Guangzhou Internet Court Editor: Lin Chunsen