The State Administration for Market Regulation solicits opinions on the “Prohibition of Unfair Competition on the Internet (Draft for Public Comment)”

Prohibition of Unfair Competition on the Internet

(Draft for public comment)

Chapter 1 General Provisions

Article 1 In order to stop and prevent unfair competition on the Internet, encourage and support innovation, maintain a fair competition market order, protect the legitimate rights and interests of operators and consumers, and promote the sustainable and healthy development of digital economy norms, according to the These Provisions are formulated in accordance with the Fair Competition Law (hereinafter referred to as the Anti-Unfair Competition Law), the Electronic Commerce Law of the People’s Republic of China, the Administrative Penalty Law of the People’s Republic of China (hereinafter referred to as the Administrative Penalty Law) and other laws.

Article 2 Operators engaging in production and business activities through the Internet and other information networks (hereinafter referred to as the network) shall abide by the principles of voluntariness, equality, fairness and integrity, abide by laws and regulations and these Provisions, and abide by business ethics.

Operators shall not conduct or help conduct acts of unfair competition on the Internet, disrupt the order of market competition, affect fair market transactions, or directly or indirectly damage the legitimate rights and interests of other operators or consumers.

Article 3 The State Administration for Market Regulation is responsible for organizing and guiding the nationwide online anti-unfair competition work, investigating and handling major online unfair competition cases.

The departments of the people’s governments at or above the county level that perform market supervision and management duties (hereinafter referred to as the market supervision departments) shall investigate and punish acts of unfair online competition in accordance with the law.

Article 4 The member units of the anti-unfair competition work coordination mechanism of the people’s government at or above the county level shall strengthen coordination and cooperation, jointly study and solve major problems in the network competition in their respective regions, and jointly carry out comprehensive governance of the network unfair competition behavior.

Article 5 encourages, supports and protects all organizations and individuals to conduct social supervision over unfair competition on the Internet. Any unit or individual has the right to report to the market supervision department for suspected acts of unfair competition on the Internet, and the market supervision department shall deal with it in a timely manner in accordance with the law after receiving the report.

Industry associations and other social organizations are encouraged to conduct analysis and research on unfair competition on the Internet, and guide and regulate member units to compete in compliance with laws and regulations.

Article 6 Platform operators shall provide guidance and regulations on the competitive behavior of operators on the platform. If operators on the platform are found to have violated these regulations, they shall take necessary measures in accordance with the law, keep relevant disposal information for not less than three years and accept them in accordance with the law. supervised check.

After taking necessary disposal measures, if the operators on the platform continue to carry out illegal acts and cause harmful consequences, the platform operators shall promptly report the illegal clues to the market supervision department with jurisdiction.

Chapter II General Norms of Online Competition Behavior

Article 7 In the production and sales activities, operators shall not use the Internet to carry out the following confusing behaviors, leading people to mistakenly believe that they are goods of others or have a specific connection with others:

(1) Unauthorized use of identical or similar identifiers, such as the main part of the domain name, website name, webpage, etc., which others have certain influence;

(2) Unauthorized use of the same or similar logos as the page design, name, icon, shape, etc. of the application software, online store, self-media, game interface, etc. that have a certain influence on others;

(3) Unauthorizedly setting the names of commodities, business names (including abbreviations, font sizes, etc.), social organization names (including abbreviations, etc.), names (including pseudonyms, stage names, and translated names) that have certain influence on others as search keywords.

(4) Other confusing behaviors that use the Internet to lead people to be mistaken as the goods of others or have a specific connection with others.

Operators providing network services shall not help other operators to carry out the confusing behaviors specified in the preceding paragraph.

Article 8 Operators shall not use the following methods to make false or misleading commercial propaganda about the performance, function, quality, honors, qualifications, etc. of the operators themselves or their commodities, so as to deceive or mislead consumers or the relevant public:

(1) Displaying, demonstrating, explaining, explaining, recommending, or text marking through websites, self-media and other network means;

(2) Implementing commercial marketing activities through live broadcast marketing, topic marketing, platform recommendation, online copywriting, etc.;

(3) Other online publicity methods.

Operators shall not help other operators to carry out the false or misleading commercial propaganda acts in the preceding paragraph.

Article 9 Operators shall not use the following methods to make false or misleading commercial publicity on the sales status, transaction information, business data, user evaluations, etc. of the operators themselves or their commodities, so as to deceive or mislead consumers or the relevant public:

(1) False transactions or organization of false transactions;

(2) False rankings or organizing false rankings;

(3) fictitious business-related data information such as transaction volume, transaction volume, and reservation volume;

(4) Traffic data such as fictitious user evaluations, collections, likes, votes, attention, subscriptions, and forwarding;

(5) Using misleading Display and other methods to conceal negative reviews, or to preface positive reviews and post negative reviews, or not to clearly distinguish reviews of different products or services, etc.;

(6) fictitious interactive data such as the number of clicks, attention, reading, listening, viewing, and playing;

(7) Conducting false marketing by falsely claiming to be in stock, making false reservations, or falsely snapping up purchases;

(8) Cashback, red envelopes, coupons, etc. are sufficient to induce users to make specified evaluations, likes, reposts, directional voting and other interactive behaviors;

(9) Other false or misleading commercial propaganda.

Operators shall not help other operators to carry out the false or misleading commercial propaganda acts in the preceding paragraph.

Article 10 Operators shall not use property or other means to bribe online platform staff, units or individuals that have an influence on online transactions, in order to seek transaction opportunities or competitive advantages.

Article 11 Operators shall not use the Internet to fabricate or spread false information or misleading information, and damage the commercial reputation and product reputation of competitors.

The “false information” mentioned in the preceding paragraph refers to information whose content is untrue and inconsistent with the actual situation.

The “misleading information” mentioned in the preceding paragraph refers to information that, although true, only states part of the facts and is likely to lead to false associations.

The term “damaging the business reputation and product reputation of competitors” as mentioned in the preceding paragraph refers to the significant reduction or decline of other operators’ network traffic, commercial advertising revenue, financing capacity, etc., as well as transaction opportunities, predictable commercial benefits, bargaining power, brand Potential competitiveness, such as value, is compromised.

Article 12 Operators shall not carry out the following acts to damage the commercial reputation and commodity reputation of competitors:

(1) Organizing or instructing others to maliciously evaluate competitors’ products in the name of consumers;

(2) Using or organizing or instigating others to maliciously spread false or misleading information through the Internet;

(3) Using the Internet to make false or misleading risk warnings, client letters, warning letters, lawyer letters or reporting letters, etc. to competitors’ products;

(4) Other acts of fabricating or spreading false or misleading information and damaging competitors’ business reputation and product reputation.

We-media, providers or users of threading and commenting services, network navy and other organizations or individuals shall not help other operators to carry out the acts in the preceding paragraph.

Chapter 3 Prohibits the use of technical means to interfere with unfair competition such as interference

Article 13 Operators shall not use data, algorithms and other technical means to impede or destroy the normal operation of network products or services legally provided by other operators by influencing user selection or other means to conduct traffic hijacking, interference, malicious incompatibility, etc. .

Article 14 Without the consent of other operators, operators shall not implement the following traffic hijacking behaviors such as inserting links or forcing target jumps in network products or services legally provided by other operators:

(1) Inserting jump links or embedding links to their own products or services in network products or services legally provided by other operators;

(2) Using functions such as keyword association to set up links to its own products or services, deceiving or misleading users to click;

(3) Other acts of traffic hijacking through technical means.

Article 15 Operators shall not use technical means to carry out the following acts that interfere with the network products or services legally provided by other operators:

(1) Misleading, deceiving, forcing users to modify, close, uninstall, or give up the use of network products or services legally provided by other operators;

(2) Downloading, installing, or running applications against the wishes of users, damaging the legitimate rights and interests of consumers or affecting the normal operation of equipment, functions or other programs legally provided by other operators;

(3) Not providing the uninstall function for applications with non-basic functions or setting obstacles to the uninstallation of applications, which damages the legitimate rights and interests of consumers or affects the normal operation of equipment, functions or other programs legally provided by other operators;

(4) Blocking, intercepting, modifying, closing, or uninstalling network products or services legally provided by other operators without justifiable reasons, preventing their download, installation, operation, upgrade, forwarding, dissemination, etc.;

(5) Adjust the natural ranking position of other operators’ network products or services in the search results, and implement malicious locking.

(6) Other acts that obstruct or interfere with network products or services legally provided by other operators.

Article 16 Operators shall not use technical means to maliciously implement incompatibility with network products or services legally provided by other operators.

To determine whether an operator maliciously implements incompatibility with network products or services legally provided by other operators, the following factors shall be comprehensively considered:

(1) The subjective intent of the incompatible act;

(2) The scope of the object of the implementation of the incompatible act;

(3) The impact of the implementation of the incompatible behavior on the market competition order;

(4) The impact of the incompatible behavior on the normal operation of network products or services legally provided by other operators;

(5) The impact of the incompatible behavior on the legitimate rights and interests of consumers and social welfare;

(6) Whether the incompatible behavior complies with the principle of good faith, business ethics, specific industry practices, professional norms, self-discipline conventions, etc.;

(7) Whether there are legitimate reasons for the incompatible behavior.

Chapter 4 Prohibits the use of technical means to carry out other acts of unfair competition on the Internet

Article 17 Operators shall not directly, organize or use third parties to conduct high-frequency transactions with competitors in a short period of time or give favorable comments, etc., to trigger the platform’s anti-swiping penalty mechanism and reduce the competitors’ trading opportunities.

Article 18 Operators shall not target specific information service providers to block or block their information content and pages, except for frequently pop-up information that interferes with users and information such as floating and windows that do not provide closing methods.

Article 19 Operators shall not use technical means to reduce trading opportunities between other operators by affecting user selection, limiting current, blocking, and removing products from shelves, implement “choose one from two” behaviors, and hinder or destroy other business operations. The normal operation of the network products or services legally provided by the users, disrupting the order of fair competition in the market.

Operators shall not use technical means to influence other operators’ business choices by restricting transaction objects, restricting sales area or time, and restricting participation in promotions, etc., implement “choose one” behavior, and hinder or destroy dependent transaction counterparties. The normal operation of legally provided network products or services disrupts the order of fair market transactions.

Article 20 Operators shall not use technical means to illegally capture and use data of other operators, and constitute a substantial substitute for the main content or partial content of network products or services legally provided by other operators, or unreasonably add other The operating costs of operators, detract from the security of user data of other operators, and hinder or destroy the normal operation of network products or services legally provided by other operators.

Article 21 Operators shall not use data, algorithms and other technical means to collect and analyze the transaction information of the counterparty, the content and frequency of browsing, the brand and value of the terminal equipment used in the transaction, etc. The counterparty of the transaction provides different transaction information unreasonably, infringes the counterparty’s right to know, the right to choose, the right to fair trade, etc., and disrupts the order of fair trade in the market.

Transaction information includes transaction history, willingness to pay, consumption habits, individual preferences, ability to pay, degree of dependence, credit status, etc.

Article 22 Operators shall not use technical means to carry out other acts that hinder or destroy the normal operation of network products or services legally provided by other operators.

The following factors may be comprehensively considered in judging whether the normal operation of network products or services legally provided by other operators is hindered or destroyed:

(1) Whether the network products or services legally provided by other operators cannot be used normally;

(2) Whether the network products or services legally provided by other operators cannot be downloaded, installed or uninstalled normally;

(3) Whether it leads to an unreasonable increase in the cost of network products or services legally provided by other operators;

(4) Whether it has resulted in an unreasonable reduction in the number of users or visits of network products or services legally provided by other operators;

(5) Whether it leads to an unreasonable decline in consumer experience or unreasonable losses to other interests;

(6) The number of times the act was carried out and the length of the duration;

(7) The geographical scope, time scope, etc., of the influence of the act;

(8) Other factors.

Chapter V Supervision and Inspection

Article 23 Cases of unfair online competition shall, in general, be governed in accordance with the “Regulations on Administrative Penalty Procedures for Market Supervision and Administration”.

The market supervision department in the place where the website creator or manager is domiciled, where the operator actually operates, or where the illegal results occur may also exercise jurisdiction if they first discover clues to the violation or receive relevant reports.

Article 24 During the process of investigating and handling cases of unfair competition in the Internet, the business operators, interested parties and other relevant units and individuals under investigation shall truthfully provide relevant materials or information, and shall not forge or destroy the data and related materials involved in the case. , shall not hinder the market supervision department from performing its duties in accordance with the law, and shall not refuse or hinder the investigation.

Article 25 If an operator violates these regulations and conducts unfair competition, if the circumstances are serious or cause a major impact, after accepting the administrative penalty from the market supervision department, it shall make a rectification letter to the public through the Internet, and undertake to take measures to eliminate the consequences of the behavior .

Article 26 Based on the needs of case handling, the market supervision department may entrust a third-party professional organization to collect and fix electronic evidence related to the case, and audit financial data.

Article 27 For new and difficult cases, the market supervision department may appoint expert observers to assist in the investigation.

Expert observers may, based on their professional knowledge, business skills, practical experience, etc., give opinions on whether the competitive behavior of operators has legitimate reasons such as promoting innovation, improving efficiency, and protecting the legitimate rights and interests of consumers.

Article 28 An expert observer shall meet the following conditions at the same time:

(1) Have good moral character, be fair, honest and trustworthy;

(2) Possess a bachelor’s degree or above in law, economics, finance or computer science;

(3) At least 5 years of work experience in the field of Internet or unfair competition regulation.

Article 29 Expert observers shall recuse themselves under any of the following circumstances:

(1) He has ever worked for the operator under investigation;

(2) Holding a post or part-time job at a competitor of the business operator under investigation;

(3) There is evidence to prove that the participation of expert observers in assisting the investigation involves the risk of divulging the business secrets of the operator under investigation and other intellectual property risks;

(4) There are other interests that may lead to injustice in the investigation results.

Article 30 The market supervision department and its staff, third-party professional institutions, expert observers, etc. shall be obliged to keep confidential the business secrets learned during the investigation process.

Chapter VI Legal Liability

Article 31 Business operators who violate Article 7 of these Provisions shall be punished by the market supervision department in accordance with Article 18 of the Anti-Unfair Competition Law.

Article 32 Business operators who violate Articles 8 and 9 of these Provisions shall be punished by the market supervision department in accordance with Article 20 of the Anti-Unfair Competition Law.

Article 33 Business operators who violate Article 10 of these Provisions shall be punished by the market supervision department in accordance with Article 19 of the Anti-Unfair Competition Law.

Article 34 Business operators who violate Articles 11 and 12 of these Provisions shall be punished by the market supervision department in accordance with Article 23 of the Anti-Unfair Competition Law.

Article 35 If an operator violates Articles 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 of these Provisions, the market supervision department shall The punishment stipulated in Article 24 of the Anti-Unfair Competition Law.

Article 36 Business operators who violate Article 24 of these Provisions shall be punished by the market supervision department in accordance with Article 28 of the Anti-Unfair Competition Law.

Article 37 If an operator violates the provisions of Articles 6 and 25 of these Provisions, if there are provisions in laws and regulations, such provisions shall be followed. Where the laws and regulations do not provide for it, the market supervision department shall, depending on the seriousness of the circumstances, issue a warning, or impose an administrative penalty of not more than three times the amount of illegal income but not more than 30,000 yuan; if there is no illegal income, a fine of not more than 10,000 yuan shall be imposed.

Article 38 Where an operator abuses its dominant market position and implements online competition to exclude or restrict competition, it shall be dealt with in accordance with the Anti-Monopoly Law of the People’s Republic of China.

Article 39 If an operator violates these regulations and has illegal gains, in accordance with the provisions of Article 28 of the Administrative Punishment Law, except for those that should be refunded according to law, they shall be confiscated.

Chapter VII Supplementary Provisions

Article 40 These regulations shall come into force from the date of 2021.

The Links:   CM1200HA-34H NL3224BC35-20