Panel IV: Discussion on Legal Issues Related to Internet Platform Governance


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China has witnessed a rapid development of the Internet industry, whose development dominated by the platform model. The vigorous development of the platform economy has become an important phenomenon in global economic growth in recent years, which exists and operates in the form of an ecosystem. The development of the platform ecosystem directly determines the success of the platform model. In order to maintain the orderly development of the platform ecosystem, its operating entities will construct and maintain their own values and management rules. How to qualitatively determine the behaviors of destroying the platform ecology and counteracting platform management measures with technical means? How to define the boundaries of the responsibilities and obligations of the platform and its counterparties on the premise of respecting the autonomy of platform operation? These are important issues worth discussing.

In view of this, the 10th China IP International Annual Forum & 2020 Annual Conference of In-House IP Managers in China set up a special Panel, with the theme of "Research on Legal Issues Related to the Governance of the Internet Platform." Prestigious guests from the fields of jurisdiction, academy, enterprises came together to exchange views. The Panel was chaired by Deng Hongguang, Professor of Southwest University of Political Science and Law,

In the opening speech, Professor Deng summarized various problems encountered in the operation of the current Internet platform and introduced the purpose, main topics and agenda of the Panel.

Zhang Zhanjiang, Associate Professor and Doctoral Tutor of the Law School, Shanghai University of Finance and Economics, addressed about the current lack of competition law thinking and made a speech under the title of "Competition Law Thinking of Unfair Competition Determination." By introducing the development of Anti-Unfair Competition Law, he analyzed the differences between tort law thinking and competition law thinking and then pointed out that the latter is mainly illustrated as an undistorted competition determination standard and interest measurement method. Then, he explained the competitive function and the modest nature of the law through the Benetton advertising case and the LinkedIn case respectively, and explained what the undistorted competition determination standard is. Aiming at the application of interest measurement methods, Professor Zhang analyzed the free competition interests of competitors, the free decision-making interests of consumers, and the social public interests. He then combined the DianPing case, Baidu case, and LinkedIn case to point out that these three types of interest evaluations are often intertwined and all directed to the principle of proportionality. At the end of his speech, Zhang pointed out that under the thinking of competition law, the general provisions of the Anti-Unfair Competition Law will have greater certainty and applicability.

Qiao Jing, the Legal Expert of Tencent, delivered a speech on the topic of “Typical Torts and Related Judicial Advice Involved in Governance of the Internet Platform.” She used governance rules of Tencent's WeChat platform, video platform, game platform and others as the starting point and explained the relationship between the platform governance rules and relevant laws and regulations. She pointed out that, in response to typical infringements and black-market behaviors of general operators, Tencent, in addition to adopting platform governance measures, also actively resorted to the law. Subsequently, through an in-depth analysis of the merits of a large number of cases and court decisions, Qiao Jing put forward some constructive judicial suggestions around the difficulties of the lawsuit: First, the court can increase injunctive relief to solve the problem of long delays in Internet tort litigation; second, the court can use the form of investigation order to allow the platform to obtain information about the subject of infringement from the relevant agencies; the third is that the court can query the related property clues through the internal system; the fourth is that to respond to the problem of often recurrence of infringement, the court may consider increasing compensation.

Based on the theme of "Platform Obligations and Responsibility Boundaries in the Context of Platform Economy," Zhu Ge, Judge of the Beijing Internet Court, combined the current situation of the platform economy, the technical level and the introduction of the E-Commerce Law and analyzed cases such as short video of Tik Tok, live broadcast of Douyu and Panduoduo. Through sorting out the court's judgments, she proposed that the court mainly considered factors such as the duty of care, direct benefits, and technical evils when determining the platform’s fault. At the end of his speech, Judge Zhu concluded that there are currently three major trends that need to be closely monitored: first, systemic thinking to coordinate the relationship between special Intellectual Property Law and Anti-Unfair Competition Law; second, sink into the scene to consider platform obligations and responsibility boundaries, and consider introducing pervasive technology applications into a reasonable duty of care; third, judicial adjudication leads high-quality content to transmit mainstream values, and to enhance the social construction of ideological infrastructure.

Pei Ran, Deputy Chief Judge of the Intellectual Property Court of the Third Intermediate People's Court of Tianjin, gave a speech around the theme of "Trial of Unfair Competition Disputes on the Internet Platform," He focused on the analysis of four types of competitions on the platform WeChat: spreading app links in WeChat, inducing users to download and install apps, changing domain names to fight WeChat, and capturing WeChat relationship chains. After that, aiming at the question of what should the court consider when prosecution is based on Article 2 of the Anti-Unfair Competition Law, he analyzed two specific cases and proposed that the legitimacy of the conduct can be determined from the perspectives that the Internet platform business model, WeChat competitive advantage are legal benefits protected by Anti-Unfair Competition Law, and integrity standards in the platform environment and comparisons with honest operator standards, etc.

Zhong Xiaokai, Senior Judge of Shenzhen Intellectual Property Court and Associate Researcher in Law, made a speech focusing on "Judicial Application of Injunctions in Internet Unfair Competition Disputes." After thoroughly discussing the current status of the Internet market and the nature and characteristics of behavior preservation measures, he argued that the injunction in the lawsuit is an important means to optimize the Internet business environment. Regarding the specific application of the injunction in the Internet unfair competition dispute lawsuits, he then introduced the legal normative basis for the application of the injunction in detail from judicial interpretations of the Anti-Unfair Competition Law, the Civil Procedure Law and so on; after that, he further explained the elements of the factual basis of the injunction and his insights on its application in the lawsuit.

After the keynote session, Tao Jun, Judge of the Third People's Court of the Beijing Higher People's Court, Zhang Jinzhu, Judge of the Third People's Court of the Shandong Province, Yi Zhenchun, President of the Intellectual Property Tribunal of Shijingshan District People's Court, Beijing, and Yang Xingfang, Chief Legal Advisor, General Manager of the Intellectual Property and Legal Department of NewTV, participated in the discussion session with the above keynote speakers.

In this session, the guests had an in-depth discussion on the issues of Internet platform's duty of care, necessary measures and malicious notifications, etc. Professor Deng Hongguang finally concluded that the court is the capital of the legal empire, and the study of relevant cases and guidelines will help us to understand the balance of interests of the relevant subjects in the infringement disputes on the Internet platform. This Panel will certainly provide many useful lessons for the future resolution of legal issues related to the governance of the Internet platform.