更改关键词搜索结果行为损害了其他市场主体的合法权益、侵犯了互 联网用户的知情权与自主选择权、破坏了互联网市场竞争秩序,对其进 行规制已刻不容缓. 但适用传统不正当竞争行为认定方法对此类行为的违 法性进行认定时,在认定理念、认定标准、认定依据方面均遭遇困境. 破 解困境,可从以下路径着手:坚持优先保护市场竞争秩序、多元化利益 协调保护的认定理念,确立以竞争机制标准为核心的认定标准,完善法 律法规依据、增强行业惯例效力. 近年来,以关键词搜索为载体实施的互联网新型不正当竞争行为大大 增加,这些行为的出现,危害极其严重,不仅损害了其他竞争者的合法 权益,还侵犯了互联网用户的合法权益,对互联网市场的竞争秩序造成 了严重破坏. 作为一种互联网新型不正当竞争行为,更改关键词搜索结果 行为无论在行为构成还是实施机制上,均与传统的不正当竞争行为存在 较大差异,导致实务部门适用传统不正当竞争行为认定方法对此类行为 进行违法性认定时,遭遇诸多困境. 由于该类行为出现时间较短、形式较 新,理论界尚未进行深入系统的研究,也未对司法实践提出有益的建 议,鉴此,本文试图从行为违法性认定的视角进行深入系统的研究,以 期对司法实践有所裨益.
The act of altering key word searching results demands urgent regulation for it has damaged the legitimate rights and interests of other market players, infringed upon the internet users’ right to know and freedom of choice, and disrupted the order of competition on the internet. However, identification of the illegality of such act by applying traditional means of identifying unfair competition act would encounter predicament in terms of philosophy, standard and basis for identification. It is thus suggested that the following routes may be followed: insisting on the identification philosophy of giving priority to the protecton of the order of market competition and coordinated protection of pluralistic interests, establishing the identification standard of taking the competition mechanism as its core, improving legal basis, and increasing the influence of industry practice. In recent years, the substantial increase of new type of unfair competition over the internet by the use of key word searching has not only harmed the legitimate rights and interests of other competitors, but also infringed upon the legitimate rights and interests of net-users, seriously damaging the order of competition on the internet. As a new kind of unfair competition on the internet, altering key word searching results is quite different from traditional unfair competition practices in terms of both elements of act and its implementation mechanism, which has rendered the agencies in practice confronted with many predicaments in applying the traditional means of unfair competition identification to the illegality identification of such acts. Due to its new presence and form, the theoretical circles have not yet carried out in-depth and systematic research, nor put forward any useful suggestions for judicial practice. In view of this, this paper attempts to conduct an in-depth and systematic research from the perspective of illegality identification, and hopefully it will help judicial practice.