平台封禁的反不正當競爭法應對——以《反不正當競爭法》的修訂為背景

The Regulation on Platform Blocking by the Law against Unfair Competition——In the Background of the Revision of the Law against Unfair Competition

平台封禁是指數字企業利用技術手段關閉面向特定經營者的應用程序接口，致使特定經營者無法使用平台設施的競爭行為，具體表現為屏蔽軟件功能、禁止外部鏈接直連或接入某項業務等方面。該行為很可能破壞競爭秩序，阻礙數字經濟健康發展。鑒於反壟斷法難以充分回應平台封禁，適用反不正當競爭法規制平台封禁成為維護數字競爭秩序的可行選擇。在《反不正當競爭法》修訂的背景下，平台封禁應當參照惡意不兼容予以處理。認定平台封禁是否構成惡意不兼容應以“妨礙、破壞其他經營者合法提供的網絡產品或者服務正常運行”為主要標準，兼顧“惡意”的主觀心態。為應對平台封禁，《反不正當競爭法》的“網絡條款”需要修訂，執法機制應予以優化，司法裁判需作出相應變革。

The platform blocking refers to the competitive behavior of digital enterprises using technological means to close application program interfaces aimed at specific operators, resulting in specific operators being unable to use platform facilities. This is manifested in blocking software functions, prohibiting external links from directly connecting or accessing certain businesses, and so on. This behavior is likely to disrupt the competitive order and hinder the healthy development of the digital economy. To distinguish between legal and illegal platform blocking, the following two steps need to be taken: first, analyze whether platform blocking constitute an abuse of market dominance; second, determine whether the platform blocking constitutes unfair competition behavior. The refusal of transactions or self preferential treatment systems in antitrust laws are difficult to respond to platform blocking. It is of great significance to determine whether platform blocking constitute unfair competition behavior. According to the provisions of the draft for soliciting opinions on the revised draft, the regulatory paths for platform blocking include the following three: firstly, according to Article 13 and Article 47, it is determined that platform blocking constitute an abuse of relative advantage; Secondly, apply Article 16 to classify illegal platform blocking as malicious incompatibility; Thirdly, Article 17 specifically targeting specific prohibited acts shall apply. Through comparative analysis, platform blocking should be handled according to malicious and incompatible paths. The key to determining the illegality of platform blocking lies in distinguishing between legitimate and illegal platform blocking. Because illegal platform blocking corresponds to malicious incompatibility, the determination of illegality should be based on the differentiation criteria between malicious (illegal) incompatibility and legal incompatibility. The determination of illegality is mainly based on the criterion of '' obstructing or disrupting the normal operation of network products or services legally provided by other operators'', as well as the subjective mentality of ''malice''. The courts or law enforcement agencies should fully listen to the opinions of both the plaintiff and defendant, administrative counterparties, or whistleblowers to prevent excessive discretion. In response to platform blocking, the ''Internet Clause'' of the the Law against Unfair Competition needs to be revised, law enforcement mechanisms should be optimized, and judicial rulings need to make corresponding changes. Regarding the issue of platform blocking, some scholars advocate referring to the EU's ''gatekeeper'' system to ex ante regulate the blocking behavior of Chinese super platform enterprises, while others advocate accelerating the development of technical standards for interconnectivity to promote connectivity between platforms. However, there are also voices of questioning in the academic community regarding the ''gatekeeper'' system; The formulation and implementation of technical standards rely more on free negotiation among enterprises and industry association autonomy, and should not be forced. The complementary advantages and interconnectivity among operators are the result of seeking benefits and avoiding harm under market competition incentives. The ban behavior implemented by operators after weighing the pros and cons is also the result of free choice, and it is still the rightful meaning of current interconnectivity. As a remedy for market failure, the legal regulation of platform bans should be limited to specific condition. Currently, the interconnected digital ecosystem can only be gradually realized with the progress of technological level and the improvement of competitive level.