With the advent of the era of big data, data has become the most important asset of enterprises and individuals, and data security and privacy boundaries have become more and more important. If the data owner does not conduct appropriate security assessment, data cleansing, desensitization, or inadequate protective measures before opening data sharing, it may lead to unauthorized access or use of data, or breach the boundaries of personal and commercial data rights and interests protection, resulting in infringement of the privacy or trade secrets of the data source. However, at the same time, the security obligation of public data is also two-way, involving not only the obligations of data providers, but also the obligations of users and collectors. This article focuses on the security or competition boundary issues faced by big data enterprises and online platforms in the process of collecting and using public data, and answers the question of how to control the security and competition boundaries in the process of collecting, storing, transmitting, and using public data to avoid infringement or other legal liabilities.
The security boundary for scraping, collecting, and using public data on online platforms is in the first placeCan data that can only be disclosed after user access rights are set can be arbitrarily captured, collected, and used in the future by technical means?
The security boundary of scraping and collecting public data on online platforms lies in whether the means of scraping, collecting, and even using data are legal and proper, and when they are not legitimate, it will constitute an act of unfair competition, and thus bear civil liability for compensation. Even if the collection and capture is legitimate, if it is used improperly, such as affecting the normal operation of other operators or the original display rules, it will also involve unfair competition. 
According to judicial adjudication cases, one of the prerequisites for scraping and collecting public data on online platforms is that the means of data capture are legal and legitimate. The legitimacy of data scraping is sufficient to form the basis for the legality of the entire data scraping and use behavior. The grabber bears the burden of proof for the legitimacy of the scraping act. In addition, if the use of data after data capture constitutes a substantial substitution or affects the normal operation of the business operator, because of its unfairness, it also constitutes an act of unfair competition in violation of Article 12, Paragraph 2, Item 4 of the Anti-Unfair Competition Law, that is, "other acts that obstruct or undermine the normal operation of network products or services lawfully provided by other business operators", and constitute an act of unfair competition. For example, in the case of Weibo public opinion data capture between Antfang and Weimeng Chuangke, the data of the Weibo platform was divided into public data without set access rights and other non-public data, and the Eagle Strike system developed by Antfang Company claimed that it captured the public data of the Weibo platform through legal web crawler technology and five data interfaces that were allowed, and only included the front-end data of the Weibo platform that could be accessed without the user logging in, and did not include the back-end data corresponding to the front-end content that the user could only view when the user was logged in, but it could not make a reasonable explanation for why it was able to collect accurate and wonderful real-time informationTherefore, the court found that Antfang Company had unauthorized, bypassed the technical restrictions and access rights of the Sina Weibo platform through technical means, and captured and stored the platform data of Sina Weibo, including non-public data with set access permissions. The acquisition of information is the basis and premise of the subsequent display, application and analysis behavior, because the behavior of Antfang Company to capture and store the data of the microblogging platform is improper, so its subsequent use of this part of the data application, display and analysis does not have the basis of legitimacy because the data is not legal. At the same time, in the process of displaying and presenting the data after the data is captured, Antfang changed the data-specific display rules of the Weibo platform (e.g., the blogger's comments and comment content on other people's Weibo cannot be viewed on the blogger's homepage), and it is also improper to change the presentation method of this part of the data in the Eagle Strike system (e.g., the blogger's Weibo and his comments on other people's Weibo can be directly displayed). The reason why the above-mentioned acts are identified as:Constitutes unfair competitionIt is because this kind of improper grabbing, subsequent use and display behavior infringes on the legitimate rights and interests of the Weibo platform as an online platform operator, so that users can view and display in real time without leaving the Weibo platform. Browsing a large number of Sina Weibo content undermined the normal operation of the Weibo platform of Weimeng Company, weakened the competitive advantage of the Weibo platform and the trading opportunities and trading space for commercial use of Weibo data, thus violating the provisions of Article 12, Paragraph 2, Paragraph 4 of the Anti-Unfair Competition Law and constituting unfair competition. Therefore, the court ordered Antfang Company to stop the sued acts, eliminate the impact, and compensate WeDream Innovation and Technology Company for economic losses of 5 million yuan and reasonable expenses of 280,000 yuan. On August 17, 2021, the State Administration for Market Regulation (SAMR) issued the Provisions on the Prohibition of Online Acts of Unfair Competition (Draft for Public Comment), Article 20 of which clearly stipulates the illegal capture of data, providing a clear regulatory basis for data scraping unfair competition cases, that is, "Article 20: Business operators must not use technical means to illegally capture or use the data of other business operators, and substantially replace the main content or part of the content of network products or services lawfully provided by other business operators, or unreasonably increase the operating costs of other business operators, impair the security of other business operators' user data, or obstruct or undermine the normal operation of network products or services lawfully provided by other business operators." Therefore, to determine whether a data scraping act is legitimate, it is necessary to comprehensively consider a variety of factors, such as whether it has been authorized or licensed by the crawled platform, whether measures have been taken to break through the technical protection and access rights, whether the scraping through web crawlers violates the robot agreement, and whether the authorization of the user has been obtained, and whether the subsequent use of the scraped data constitutes a substantial substitution. If a data scraping behavior itself is improper, then the subsequent use of this part of the data, such as display and analysis, will also be justified because the data is not legitimate. Another case involves Beijing Chuangrui Culture Media *** referred to as Chuangrui Company). Without permission, the company directly grabbed and transported more than 50,000 short ** files, more than 10,000 user information, and 127 user comments in the public data collection of the Douyin platform, and displayed and disseminated them on the Brush App. In this case, Chuangrui's behavior was determined to be a violation of the Anti-Unfair Competition Law, because it grabbed and used the public data of the Douyin platform without authorization, which undermined the normal operation of the network platform services, and Chuangrui Company directly and massively captured and transported the short**, user information, and user comments in the data collection involved in the case for use in the Brush App, which substantially replaced the products or services provided by Weibo Vision, directly damaged the competitive interests of Weibo Vision, and hindered the network short** The development of the industry, the destruction of the competitive order, and the harm of consumer welfare. After trial, the court of first instance held that Chuangrui's alleged behavior violated the principle of good faith and business ethics stipulated in Article 2 of the Anti-Unfair Competition Law of the People's Republic of China, and constituted an act of unfair competition, and was sentenced to compensate Weibo Vision Company for economic losses of 5 million yuan.
Is it possible to access, collect, and use publicly available data without any restrictions?The security or competition boundary for the use of open data that has been opened is in **?
Although online platform operators tolerate the lawful collection and use of public data by others, they cannot simply assume that public data can be arbitrarily obtained, and not all scraping and collecting of public data is legal and compliant. The fact that public data that has already been opened on an online platform shall allow others to lawfully obtain and use it does not mean that the online platform does not enjoy lawful rights and interests in that part of the data. Even for the capture of public data without permissions, it is necessary to make a comprehensive judgment on the legitimacy of the relevant acts based on factors such as the quantity, scale, and value of the data in each case, as well as the substantial substitution of the original platform by subsequent uses.
Take the ** information scraping case as an example. Beijing Shenying Chengxun Technology Co., Ltd. ***Chengdu Shenying Chengxun Technology Co., Ltd. is collectively referred to as Shenying Company) without permission, using technical means to capture and store the basic information, transaction information, characteristic information, field survey drawings, VR drawings, and house plans (referred to as the data involved in the case) in the shell search network, and at the same time automatically remove the watermark of the shell network, and disseminate the data involved in the case to its users or the public through the information network, including displaying it to its users themselves in the Tui Tui 99 product for users to edit and ** , and publish the data involved in the case to the 99 real estate network, the third-party real estate information platform, and WeChat. In this case, Shenying Company used technical means to capture the above-mentioned public data on a large scale, and removed the watermark of Beike.com, added the watermark of other entities, and disseminated it to social ** and third-party real estate information platforms.
The reason why the act was determined to constitute unfair competition was that the sued act robbed the user traffic that belonged to Lianjia Company, affected the stickiness and trust of users, and directly damaged consumers' right to know, right to choose and transaction security due to "false **", so that operators who rely on honest operation to obtain competitive advantages could not obtain effective incentives, destroyed the competitive ecology and order of the real estate brokerage industry, and obviously violated the principle of integrity and business ethics of the real estate brokerage industry. Therefore, the court also ordered Shenying Company to eliminate the impact and jointly and severally compensate Lianjia Company for economic losses of 5 million yuan and reasonable expenses of 500,000 yuan for violating Article 2 of the Anti-Unfair Competition Law.
The fact that public data is provided and displayed to the public through online platforms without discrimination does not mean that other operators can access and use it without any restrictions. To determine whether the acquisition and use of public data constitutes unfair competition, it should be analyzed and judged in light of the specific means and methods of obtaining and using data, comprehensively considering whether the conduct violated the commercial ethics of the relevant industry, and the impact on the lawful rights and interests of other business operators, the interests of consumers, and the order of market competition.
The data involved in the case is a collection of data with a considerable scale of data, which is established, maintained, and continuously expanded by the operator, and it has invested a long-term and large amount of capital, technology, services and other operating costs, constituting the core business resources of the enterprise, so that the enterprise can obtain a competitive rights and interests accordingly, so that it can be used as a way to distinguish it from the commercial interests of other intellectual property rights for the protection of unfair competition law, which is similar to the legal protection of trade secrets, but the threshold for protection is greatly reduced. Therefore, in the judgment of this case, the court held that regardless of whether Lianjia Company enjoys the copyright of a single piece in the data collection, it does not affect the determination of whether the accused act constitutes unfair competition.
In current judicial practice, data rights and interests are protected as commercial interests of enterprises through the Anti-Unfair Competition Law. The subject of its protection is mainly aimed at the rights and interests of enterprises in commercial operations, such as "the right to hold data resources, the right to process and use data, and the right to operate data products", especially the right to use data rights and interests of enterprises.
At the legislative level, on November 22, 2022, the State Administration for Market Regulation (SAMR) released the Draft Amendment to the Anti-Unfair Competition Law for Solicitation of Comments, in which Article 18 "Data Article" was added to define data and regulate the protection of commercial data from the perspective of the Anti-Unfair Competition Law. Article 18 of the Draft stipulates that "commercial data as used in this Law refers to data collected by business operators in accordance with law, has commercial value, and takes corresponding technical management measures"."Business operators must not carry out the following acts, improperly obtaining or using the commercial data of other business operators, harming the lawful rights and interests of other business operators and consumers, or disrupting the order of fair market competition:
1) Using methods such as theft, coercion, fraud, or electronic intrusion to undermine technical management measures, improperly obtain the commercial data of other business operators, unreasonably increase the operating costs of other business operators, and impact the normal operations of other business operators;(2) Obtaining or using others' commercial data in violation of agreements or reasonable and proper data scraping agreements, and substantially substantially replacing relevant products or services provided by other business operators;(3) Disclosing, transferring, or using the commercial data of other business operators obtained through improper means, and sufficient to substantially replace the relevant products or services provided by other business operators;(4) Improperly obtaining and using others' commercial data in other ways that violate good faith and commercial ethics, seriously harming the lawful rights and interests of other business operators and consumers, and disrupting the order of fair market competition." 