The Seminar on New Issues of Internet Competition Successfully Held
On January 28, 2019, the "New Issues of Internet Competition" hosted by Peking University Competition Law Research Center was successfully held in kaiyuan building of Peking University law school.
Li Qing, Deputy Director of the Price Supervision and Anti-unfair Competition Bureau of the State Administration of Market Supervision, Wang Xiaoye, researcher at the Institute of Law of the Chinese Academy of Social Sciences and member of the Expert Advisory Group of the Anti-monopoly Commission of the State Council,Zhang Shouwen, Dean of the Institute of Law and Development of Peking University, Wu Hanhong, Director of the Industrial Economy and Competition Policy Research Center at Renmin University of China and member of the Expert Advisory Group of the Anti-monopoly Commission of the State Council, Liu Jifeng, Deputy Dean of the School of Civil and Commercial Economics at China University of Political Science and Law, Meng Yanbei, law professor at Renmin university of China, Zhang Ruiping, law professor at Beijing Jiaotong University, Huang Jin, Secretary-general of the Center for Competition Law of Institute of International Law at Chinese Academy of Social Sciences, Han Wei, faculty of law at Chinese Academy of Social Sciences, and other leaders and experts attended the seminar.
According to media reports, on January 15, 2019, three social software, Toutiao's "multi-flash", Wang Xin's "toilet MT" and Smartisan's "chatbot", were banned by WeChat. During the same period, some video apps announced to block certain social software. The meeting focused on the hot issues of blocking and shielding in the Internet field and discussed the competition law in these market competition phenomena. The Opening Ceremony was presided over by Xiao Jiangping, Director of the Competition Law Research Center of Peking University. Zhang Shouwen, Dean of the Law Development Institute of Peking University, delivered the opening speech. The seminar is divided into two sections: "anti-monopoly regulation" and "anti-unfair competition and consumer protection", which are respectively chaired by wang Xiaoye and Li Qing. At last, Wu Hanhong made the closing speech. The rich and warm seminar has brought everyone remarkable research results. This seminar has carried on thorough discussions about following questions.
A.On such blockades, shielding ACTS of anti-monopoly regulation
(i) How to understand the behavioral attributes of such behaviors
The above shielding behaviors such as: logining limit, adding friend limit, two-dimensional code link shielding, download link shielding, official website link shielding, sharing restrictions and so on. As for the nature of such behaviors, some experts believe that it may involve the abuse of the dominant market position in article 17 of the Anti-monopoly Law, such as refusal of transaction, exclusive transaction and differential treatment.
Some experts believe that if we follow what E.U. thought when checking Google, we will find that blocking behavior in violation of the Anti-monopoly Law is not a problem.
Some experts believe that in any case, there is a typical competitive relationship between platforms. Now, other platforms have started to do social software one after another, that is, they want to import short video directly into their social software. If its behavior does achieve exclusion and restriction of competition, it may involve refusal of transactions, but it should further analyze the relevant market and market dominance.
Some experts suggested that although the Internet is still developing, some behaviors are indeed difficult to be defined, but even so, similar cases may have monopoly problems.
(ii) The role of relevant market definition in such behavior analysis
To the definition of relevant market in similar behavior, each expert expressed an opinion in succession.
An expert pointed out, "according to the E.U.'s idea of investigating Google, the E.U. now confirms the relevant market and only needs to determine the dominant position in a certain relevant market. For example, there is basically no dispute on whether Google has the dominant position in the general search engine market".The European Union seems to be reviving the leverage theory. Google is an abuse of its dominant position in the general search engine market to suppress Google series competitors in the online advertising market for the purpose of excluding and restricting competition.
Some experts put forward that the United States should regulate monopolistic behavior with intent to form, and there are actually some similarities between the leverage principle of intent monopoly and that of the European Union. A crossover monopoly can use its existing position to enter into another market and thus form a monopoly in another market.
Some experts believe that new analytical tools can be used appropriately. However, the Internet economy, including big data, still needs to be defined in the relevant market. However, some factors may make it difficult to define.
(iii) The ideas for determining the dominant market position of monopoly cases in the Internet field
For the determination of the dominant market position, some experts stressed that it is true that the indicators of market share should not be taken too seriously for the new economy. However, this just emphasizes not to go to extremes, but does not mean that the market share is meaningless. In contrast, our practice is very developed, but many judicial decisions, in fact, did not thoroughly analyze the problem, many places are worth discussing.
Some experts believe that even though the Internet field is facing a lot of competition, some platforms are indeed not on the same starting line with other platforms, and clearly have a dominant market position, so they should be alert to the possible restrictive influence of large enterprises. Another expert emphasized that in cases of abuse of market dominance, the determination of market dominance should not deviate from the basic theories of industrial organization theory and anti-monopoly law.
(iv) The question of the legitimacy of the cause and reason of the act
The meeting analyzed the justifications of blocking and blocking commonly used in media reports, such as privacy, security and data closure. Experts pointed out that through the Internet, some small markets can be bigger and stronger.
Some experts pointed out that from the perspective of infrastructure, whether the Internet is the core infrastructure, the United States and Europe has not reached a conclusion. We can examine this problem from main body property, capital source etc.
Some experts stressed that connectivity is an important value of the Internet. In the traditional industry, if phones of China Mobile, China Unicom and China Telecom can only call each other within its network but not between the networks, the consequences are unthinkable .
B. Anti-unfair competition regulation on this kind of behaviors
(i) The determination of the attribute of unfair competition on this kind of behavior
Some experts believe that similar force-out, shielding are unfair competition behaviors. Some experts believe that we should first determine the nature of such problem. There is indeed a competitive relationship between Internet platforms, but they tend to believe that unfair blocking or shielding behaviors are due to their respective interests.
Some experts added that such ACTS can be applied to article 12 of the Anti-unfair Competition Law, especially "other ACTS that obstruct or disrupt the normal operation of network products or services legally provided by other operators", but it is necessary to identify which party is the subject of the obstruction.
(ii)Thoughts on the regulation of such behaviors
Some experts stressed that the "incompatibility" of the Anti-unfair Competition Law should be treated with caution. "incompatibility" may be a normal state with sufficient justifications, and there is room for discussion on the judgment of "malicious". The "good faith" in the second article of the Anti-unfair Competition Law should not be abused, which is special compared with the "principle of good faith" in the imperial article of the Civil Law.
Some experts believe that we should use the thinking of competition law to evaluate the video website advertising blocking cases, and unfair competition cannot be judged by whether it harms the business model of others.
B. Other regulations on such ACTS
Some experts also extended the discussion to consumer protection. In accordance with the Law on the Protection of Rights and Interests of Consumers, the right to fair trade should be protected, that is, all consumers are treated equally, and non-discrimination is a basic principle. Some experts believe that the antitrust criteria, based on consumer welfare or total social welfare, vary slightly from country to country.
From the perspective of market regulation, some experts pointed out that the rapid development of the Internet field really requires a long-term perspective, which involves not only national economic issues, but also the competition law or the whole market regulation law. He pointed out that these issues concern the balance of interests in various aspects of future national strategy, industrial development and consumer protection, as well as the realization of the values of freedom, order, efficiency, fairness, security and competition. Some experts pointed out that similar issues may involve different laws, so they should be considered from the perspective of different laws. Of course, regulation in all fields may be a new problem, but the problem should be clarified firstly and then analyzed in depth.
On the issue of market access, some experts believe that regulation should be strengthened.
At the same time, from the perspective of privacy protection, some experts believe that social software apps may indeed have privacy problems. On the one hand, it should emphasize the openness of factors (including competitive factors); on the other hand, it should emphasize the closure of data under the guise of security and privacy. There is a certain conflict between the two values.
The organizer also expressed its sincere thanks to the participating experts for taking time off to attend the conference and to the students for their hard preparations. With warm applause, the seminar has come to a successful conclusion.
Translated by: Luo Zhen
Edited by: Wen Yuting