The behavior of "big data killing" has been identified with detailed standards

How to refine the identification of monopolistic behaviors in the economic field of platforms such as "one out of two" and "big data killing" that are of social concern? On February 7th, the Anti Monopoly Commission of the State Council issued anti monopoly guidelines on the field of platform economy, and the responsible person of the Office of the Anti Monopoly Commission of the State Council interpreted the guidelines.How to identify "one out of two" and "big data killing"?The guide is fully based on law enforcement practice, actively responding to social concerns, and making special provisions for issues such as "one out of two" and "big data killing" that have been widely reflected in various aspects of society in recent years

How to refine the identification of monopolistic behaviors in the economic field of platforms such as "one out of two" and "big data killing" that are of social concern? On February 7th, the Anti Monopoly Commission of the State Council issued anti monopoly guidelines on the field of platform economy, and the responsible person of the Office of the Anti Monopoly Commission of the State Council interpreted the guidelines.

How to identify "one out of two" and "big data killing"?

The guide is fully based on law enforcement practice, actively responding to social concerns, and making special provisions for issues such as "one out of two" and "big data killing" that have been widely reflected in various aspects of society in recent years. It clarifies the criteria for determining whether relevant behaviors constitute monopolistic behavior.

Firstly, it is clear that "either option" may constitute an abuse of market dominance to limit trading behavior. The guidelines specify the factors that can be considered to constitute restricted trading behavior, including platform operators requiring platform operators to engage in "one of two" or other behaviors with the same effect between competitive platforms.

At the same time, the guidelines further refine the criteria for determining whether "two to one" behavior constitutes restricted trading: platform operators who implement punitive measures such as blocking stores, reducing search rights, restricting traffic, technical barriers, and withholding deposits can generally be considered as restricted trading behavior; The restrictions implemented by platform operators through incentive methods such as subsidies, discounts, discounts, and traffic resource support may also be deemed as restricted trading behavior if there is evidence to prove that they have a significant exclusion or restriction effect on market competition.

The second is to clarify that "big data killing" may constitute abuse of market dominance and differential treatment behavior. The guidelines clarify the factors that can be considered to constitute differential treatment, including the implementation of differential transaction prices or other transaction conditions by operators in the platform economy field based on big data and algorithms, based on the payment ability, consumption preferences, usage habits, etc. of the counterparty.

Regarding the determination of whether the transaction counterparty has the same "conditions", the guide specifically stipulates that differences in the privacy information, transaction history, individual preferences, consumption habits, and other aspects of the transaction counterparty obtained by the platform during the transaction do not affect the determination of the same conditions for the transaction counterparty. In practice, if operators in the platform economy field have a dominant market position and implement different transaction prices and conditions for different consumers, it may constitute differential treatment behavior.

What are the new regulations on the recognition of collaborative behavior in the field of platform economy?

From the overall framework, there is no substantial difference between the form of monopoly agreements in the field of platform economy and traditional industries, and there is also consistency in judging the overall application principles. However, it should be particularly clear that collaborative behavior in the field of platform economy may be achieved through data, algorithms, platform rules, or other closely related methods to the platform economy.

Given the complexity of the platform economy, identifying collaborative behavior in the field of platform economy can be determined through direct evidence. If direct evidence is difficult to obtain, according to Article 6 of the Provisional Regulations on Monopoly Prohibition Agreements, the operator's knowledge of relevant information can be determined based on logically consistent indirect evidence, and whether there is collaborative behavior between operators can be determined. At the same time, parallel actions such as price following made by operators based on independent expressions of intent, or if operators can provide evidence to the contrary that they do not have collaborative behavior, should not be considered collaborative behavior.

How to determine that operators in the platform economy field have a dominant market position?

The guide is based on the Anti Monopoly Law and combines the characteristics of the platform economy to further refine the considerations for determining that operators in the platform economy field have a dominant market position.

One is market share and related market competition. Considering the particularity of the platform economy, the guide specifies indicators such as transaction amount, transaction quantity, active users, click through volume, and usage duration. Given the dynamic competitive characteristics of the platform economy, the guide also explicitly considers factors such as the duration of the market share, market development status, number and market share of existing competitors, platform competition characteristics, degree of platform differentiation, economies of scale, potential competitors, innovation and technological changes.

The second is the ability to control the market, which can consider the operator's ability to control upstream and downstream markets or other related markets, hinder or affect the ability of other operators to enter related markets, the operating mode of related platforms, network effects, and the ability to influence or determine prices, traffic, or other trading conditions.

The third is financial and technological conditions, including asset size, profitability, financing ability, technological innovation and application ability, intellectual property owned, and the extent to which these financial and technological conditions can promote the business expansion or consolidation of the operator, maintain market position, and other traditional factors, as well as factors that require special consideration such as the operator's investor situation, capital sources, and ability to master and process relevant data.

The fourth is the degree of dependence. The degree of dependence of other operators on operators in the platform economy field, as well as the possibility and conversion costs of other operators turning to other platforms.

The fifth is the difficulty of entering relevant markets. The guide specifies relevant considerations, including market access, platform scale effect, capital investment scale, technical barriers, user diversity, user conversion costs, difficulty in data acquisition, user habits, etc.

It should be clarified that the guidelines specify the specific factors to be considered for determining the dominant market position of operators in the platform economy field, and specific analysis of relevant factors needs to be conducted in law enforcement practice based on individual cases.

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