Toutiao v. Tencent for Anti-unfair Competition: Business Freedom or Social Responsibility? (Ⅱ)

Business freedom and social responsibility of Internet platform enterprises 

To establish the criteria for determining "malicious incompatibility" , the value orientation of law shall be discussed first. The business freedom is the soul of market economy; The restriction of business freedom by law should be confined to the necessity of maintaining social order. However, the Internet age poses new challenges to legal norms. As the network platform responsibility symposium 2017 noted that as the network space rose, cloud computing, big data, artificial intelligence and others became basic technologies , technology-driven Internet platform was replacing enterprises to become the main way of resource allocation and organization in the future, become the new power of social governance, national governance and global governance. It deeply influenced the scientific and technological innovation, business development and social change, and brought challenges to the existing network governance system and platform governance rules. Therefore, many experts, including the founders of some Internet enterprises, are calling on Internet enterprises to undertake more social responsibility.


"Facebook", the US social networking platform that has a similar market position to Tencent's social platform also faced a lawsuit for blocking web links. The US court ultimately chose to uphold Facebook's business freedom. The judge wrote in the judgment that Facebook's role in the event was similar to a publisher, who should have the freedom to decide what to be published and what not to be published.1 In this case, there was no competition between Facebook and the blocked website, so there was no malicious competition. The legal basis for suing blocked websites is not competition law, but "discrimination".  


In addition, there are provisions in the US legislation on the wellmeaning blocking behaviors of enterprises not leading to legal liability.2 This is to protect enterprises, especially small and medium-sized enterprises which have insufficient funds to cope with too many legal disputes, from being sued for their business decisions.  


However, in April, 2018, Fortune published a comment arguing that Internet giants including Google, Facebook, Amazon, and Apple caused unfair competition to small and medium-sized enterprises, thus harming interests of consumers and squeezing the job market. The author argued that existing US antitrust law was insufficient to regulate restrictive competition behaviors in the Internet Age, and called on congress and regulation organizations to respond.3


If Haidian People's Court in Beijing wants to judge what is "malicious incompatibility" in the lawsuit of "Toutiao-Tencent", the judgment will be an important milestone to clarify the boundary between business freedom and social responsibilities of Internet enterprises, which not only can set a precedent for the domestic similar disputes, but also can provide the judicial and legislative practices around the world with an experience. As the director Yang Hongcan pointed out, "We should both encourage entrepreneurship and innovation, and maintain the order of market competition, both of which are indispensable."


1 Sikhs for Justice, Inc. v. Facebook, Inc. (N.D. Cal. Nov. 13, 2015)

2 47 US Code § 230 (c)(2).

3 Hemant Taneja, Commentary: It’s Time for Washington to Take on the Tech MonopoliesFortune.April 2, 2018.