The qualitative and legal application of video brushing behavior



The一刻资讯 qualitative and legal application of video brushing behavior

Author: He Yuan, Zhu Shiyue

"China Copyright" WeChat public account

Case introduction

Beijing iQiyi Technology Co., Ltd. (hereinafter referred to as iQiyi) complained that Hangzhou Feiyi Information Technology Co., Ltd. (hereinafter referred to as Feiyi) is a company that provides video brushing services.Through division of labor cooperation, the use of multiple domain names, continuously replacing access to IP addresses, etc., continuously access the iQiyi website video, quickly increase the video access volume in a short period of time, achieve the scores of order, and make benefits.IQiyi believes that Feiyi's behavior has seriously damaged its legitimate rights and interests, destroyed the fair competition order of the video industry, and Feiyi, Lu Mou, and Hu constituted a common infringement.Then he filed a lawsuit with the court, requesting the court to order Fei Yi Company, Lu, and Hu to immediately stop improper competition, publish statements, eliminate impacts, and even compensate iQiyi's economic loss of 5 million yuan.

Feiyi, Lu Mou, and Hu argued that iQiyi operated video websites, and the income came from advertising fees and membership fees; Feiyi received commissioned commission to increase the number of video clicks through technical means to increase the popularity of video to make profitsThe business scope and profit model of the two are different, and they are not competitive, and the "Anti -Unfair Competition Law of the People's Republic of China" (hereinafter referred to as anti -unfair competition law) clearly lists all kinds of improper competition behaviors.The brushing behavior is not prohibited, so the brushing behavior of Feiyi Company does not constitute unfair competition.

Court decision

The first instance of the People's Court of Xuhui District, Shanghai, determined that Feiyi, Lu Mou, and Hu were interfered with and destroyed the access data of the iQiyi website through technical means, violated the recognized business ethics, and harmed the legitimate rights and interests of iQiyi and consumers.The composition of improper competition can be determined based on Article 2 of the Anti -Unfair Competition Law.Therefore, it was ordered to compensate 500,000 yuan from Fei Yi, Lu Mou, and Hu Mou, and published a statement to eliminate the impact.

The second instance of the Shanghai Intellectual Property Court determined that the video brushing behavior involved in the case belongs to the "false propaganda" of the "false propaganda" regulated by Article 9 of the Anti -Unfair Competition Law.According to the facts of the found, Feiyi, Lu Mou, and Hu are in cooperation in division of labor, and jointly implemented the video brushing behavior involved in the case, and should be liable for compensation.The court of first instance made a reasonable amount of 500,000 yuan as appropriate and should be maintained.Therefore, the judgment rejected the appeal and maintained the original judgment.

Case analysis

1. Applicable conditions for anti -unfair competition laws

my country's anti -unfair competition law adopts a legislative style combining general clauses and listing regulations.The general clauses have the substantial connotation and elements of guidance and restraining judges to exercise tailoring; the application of general clauses can ensure the adaptability of the law on new development and new needs, and to ensure the flexibility and timeliness of legal adjustment.Therefore, the general clause is the openness of the law that the law is not listed, and it has functions that are generally suitable for unpopular situations and maintain openness.However, the anti -unfair competition law, as a law that regulates market competition in the market, must not only maintain the freedom and efficiency of competition, but also regulate improper competition.

Therefore, when defining a new market competition behavior, considering whether it should be adjusted by the anti -unfair competition law, it needs to be thoroughly analyzed.EssenceTherefore, the application of the general terms of the anti -unfair competition law should adhere to a humble judicial attitude, maintain limited intervention and judicial restraint of competition, and strictly grasp the applicable conditions of general clauses to avoid inappropriate intervention and hinder the market that hinders the market.Free competition.

Under normal circumstances, the application of the general terms of the anti -unfair competition law should adhere to the following principles: First, the application of the general clause adjustment of the anti -unfair competition method is not the improper competitive behavior listed in the second chapter of the anti -unfair competition law.Other special laws have not made special regulations on this behavior.The second is to determine that the laws that have not been listed in the general clause of the anti -unfair competition law must be comprehensively measured and judged by the constituent elements specified in the general terms of the anti -unfair competition law as the necessary constraints and guidelines.Including: 1. Whether it violates the principles of voluntary, equality, fairness, honesty, and recognized business ethics and is unreasonable; 2. Whether there is competitive damage, especially whether the market competitive mechanism constitutes damage.

2. The legal qualitative of the "video brush" behavior

As described above, when considering whether the "video brush" behavior can be adjusted when the general terms of anti -unfair competition law can be applied, we need to exclude this kind of behavior that is not a counter -improper competitive behavior listed in Chapter 2 of the Anti -Unfair Competition Law.In this regard, there is a certain degree of controversy in both the legislature and the judicial community.

On August 28, 2017, the Legal Committee of the National People's Congress of the National People's Congress stated on the amendment of the "Anti -Unfair Competition Law (Revised Draft)" in the National People's Congress: "... 2. Article 8 of the Draft Revised"There must be no false or misunderstanding of commercial propaganda, and no false transactions must be performed. Some places, departments, and units have proposed that false transactions are only a content that operators conduct false propaganda.Propaganda to achieve the purpose of attracting consumers, you can deal with false publicity and do not need to be regulated separately. After research, the Legal Committee is recommended to delete the rules of the operator ‘in Article 8 of the revised draft ...”.

On October 10, 2017, the Legal Committee of the National People's Congress of the National People's Congress said in the report on the results of the "Anti -Unfair Competition Law of the People's Republic of China (Revised Draft)": "... 5. Article 8 of the second review draft draft draft draft draft draft draft draft draft draft draft draftIt stipulates that the operator shall not make false or misunderstandings of its commodities, deceive, and mislead consumers. Some members of the Standing Committee have proposed that the problems of false publicity in the field of e -commerce are more serious, and there are even false transactions for organizing false transactions.Others carry out false propaganda in order to obtain unfair interests, which seriously disrupts the normal market competition order. It is recommended to enrich and improve relevant regulations on the above situations.

After research on the Legal Committee, it is recommended that the following amendments: First, refine the specific content of false propaganda, clarify that the operator shall not make false or misunderstandings about the "sales status' user evaluation" of the operator.Propaganda, deception, and misleading consumers; the second is to add one regulation, clarify that operators must not help other operators to carry out false or misunderstandings for business propaganda ... ".

From the legislative process of anti -improper competition law implemented from January 1, 2018, it can be clearly seen that on the one hand, the behavior of all sectors of society for fictional transactions and transactions isThe unfair competition behavior that disrupts the social and economic order has reached a consensus.On the other hand, in the process of legislation, whether the behavior of fictional transactions and transactions is indeed a newly established "no false transaction" clause, or controversy with the original "false propaganda" clause.The legislators finally chose the unfair competition behavior of the original "false propaganda" clause to regulate this kind of fictional transaction volume and transaction volume.The essence of fictional video clicks is the false cognition of improving the quality, playback quantity, and attention of relevant public on the videos of fictional clicks, which has played the purpose of attracting consumers.

Therefore, fictional video points are only a content that operators have carried out false propaganda, and they should be handled in accordance with the "false propaganda" regulated by Article 9 of the Anti -Unfair Competition Law.Since the behavior can be included in the specific behavior item of Article 9 of the Anti -Unfair Competition Law, the general terms need not be applied.

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