On September 9, 2021, the relevant business departments of the Ministry of Industry and Information Technology convened a "Administrative Guidance Meeting on Blocking URL Links" for multiple enterprises operating Internet platform businesses. At the meeting, the Ministry of Industry and Information Technology proposed three compliance standards for "interconnection and interworking" between instant messaging software, and requested that all platforms be unblocked according to the standards within the deadline:

 

After the meeting, major Internet platform enterprises have expressed their support for the decision of the Ministry of Industry and Information Technology and are willing to achieve "connectivity".

 

In fact, the debate among major domestic manufacturers over whether they can easily access their own products on the other side's platforms has continued for many years. Prior to this guidance meeting, various Internet platforms have taken measures such as varying degrees of blocking, blocking, or setting additional access steps for each other's products and content, forming a so-called "walled garden". For example, the content on a small video cannot be directly sent or shared to an instant messaging tool through "intra app sharing"; An e-commerce product page can be directly shared to instant messaging tools under the same ecological chain by scanning the code, but competing e-commerce product pages cannot; Various apps owned by an e-commerce giant cannot access payment tools under an instant messaging tool, among others.

 

"We mentioned in our previous article," Why Let the Giant Open - One of the Analyses on Blocking URL Links ", that" interconnection "is the fundamental attribute and value of the Internet.". In this article, we will focus on the legal risks and compliance recommendations of "blocking links".

 

1、 Risks in the Anti monopoly Law

 

The Ministry of Industry and Information Technology proposed a "three point compliance standard" at the guidance meeting, including:

 

1. Instant messaging software with external URL link access functions should maintain consistent display and access formats for URL links of the same type of products or services shared by users;

 

2. Instant messaging software with external URL link access function. Users can send and receive legal URL links in instant messaging, click on the link, and directly open it in the form of a page within the application;

 

3. "You cannot attach additional steps to a specific product or service URL link, and you cannot require users to manually copy the link and then go to a third-party browser to open it.".

 

The above criteria can be summed up in three words: "Non discrimination". Although the Ministry of Industry and Information Technology is not the anti monopoly law enforcement authority in China, the three standards proposed by the Ministry of Industry and Information Technology also echo the Anti monopoly Law:

 

Article 17 of the Anti monopoly Law stipulates that operators with dominant market positions are prohibited from engaging in the following acts of abusing their dominant market position:

 

“……

 

（3） Refusing to trade with the counterparty without justifiable reasons;

 

（4） Without justifiable reasons, restrict the trading counterpart to only conduct transactions with it or only conduct transactions with its designated operator;

 

……

 

（6） "Without justifiable reasons, differential treatment is applied to trading counterparties with the same trading conditions in terms of trading prices and other trading conditions;".

 

The above three rules are based on different perspectives. Operators with a dominant market position cannot discriminate or discriminate against their counterparts in transactions, or create unnecessary barriers.

 

In addition, according to Article 14 of the "Anti monopoly Guidelines on the Platform Economy", the factors that affect the refusal of operators in the platform economy to trade include (1) stopping, delaying, and interrupting existing transactions with trading counterparties; （2） Refuse to enter into new transactions with counterparties; （3） Substantially reduce the number of existing transactions with counterparties; （4） Unreasonable restrictions and barriers are set in terms of platform rules, algorithms, technology, and traffic allocation, making it difficult for trading counterparties to conduct transactions.

 

For acts of blocking links to other software, it is not difficult to find a corresponding basis for various prohibited acts under Article 17, assuming that they have a dominant market position (this article will not elaborate on this). "Including the need to use a" password "in an instant chat tool or to download a competitive short video to a local device and then transfer it to the instant chat tool, all of these add additional access steps, set access barriers, and are unable to access directly, clearly constituting a" differential "treatment.".

 

2、 Analysis under Anti Unfair Competition Law

 

In addition to the Anti Monopoly Law, the most likely violation of blocking links is the Anti Unfair Competition Law. Article 12 of the Anti Unfair Competition Law stipulates that:

 

"Business operators using the network to engage in production and business activities shall comply with the provisions of this Law.".

 

Business operators shall not use technical means to interfere with the normal operation of network products or services legally provided by other business operators by influencing user choices or by other means:

 

（1） Without the consent of other operators, insert links and force target jumps into the network products or services legally provided by them;

 

（2） Misleading, deceiving, and forcing users to modify, close, or uninstall network products or services legally provided by other operators;

 

（3） Malicious implementation of incompatible network products or services legally provided by other operators;

 

（4） "Other acts that impede or disrupt the normal operation of network products or services lawfully provided by other operators."

 

Although not typical, blocking links does not preclude being considered "incompatible" with other product content on your own platform. Importantly, determining a violation of the Anti Unfair Competition Law does not require determining the relevant market and market monopoly status. Although the maximum penalty limit of the Anti Unfair Competition Law is 3 million yuan, which is far lower than the Anti Monopoly Law, due to its lower level of enforcement, it has more flexibility in the subject of enforcement.

 

3、 Policy risk

 

In the current situation, the risk of blocking links engaged by operators with a dominant market position is not limited to legal risks.

 

In fact, providing access ports or blocking links has become a means for some large factories to build ecological chains. For startups, if they cannot access the dominant Internet platform, their ability to obtain traffic will be greatly reduced, even determining their survival. As a result, large factories can infiltrate emerging Internet companies through investment methods, with access or shielding as conditions, thereby achieving the goal of capital expansion.

 

However, considering that "preventing disorderly expansion of capital" is one of the key tasks in the current economic work tasks formulated by the central government, shielding link behavior may even be considered a means of "disorderly expansion of capital", which is in violation of the central government's general policy. It is possible to face stricter scrutiny in various aspects such as regulation and market access.

 

4、 Several compliance suggestions

 

After the guidance meeting, major factories have made statements. From the content of their statements, the more powerful companies in the field of instant messaging are, the more cautious their attitude is. For example, an enterprise stated that "with safety as the bottom line, implement it step by step in stages.". Another company explicitly called for "no excuses, a clear timetable, and active implementation.". The author believes that the next steps for enterprises to carry out compliance rectification are as follows:

 

On the one hand, in practice, the most common excuses for blocking links are "network security" and "public security". It should be considered legitimate and reasonable to take appropriate blocking and limiting measures for publishing bad content and links that are black and gray on the Internet. However, there is still a lack of unified understanding and standards on how to define "safety" or not. The core of both the rules of the Anti monopoly Law and the standards of the Ministry of Industry and Information Technology is "non discrimination". In other words, it is not impossible to shield, but the standards for shielding should be fair and should not discriminate between one and the other. Therefore, in order to truly achieve interconnection, it is particularly important to establish unified network and data security standards. Moreover, it is necessary to establish a rapid communication and coordination mechanism between various enterprises, so as to timely coordinate when facing new security issues and avoid unnecessary shielding behavior.

 

On the other hand, from the perspective of corporate compliance, it is natural to eliminate the blocking measures for various software products as soon as possible. However, for large companies with a dominant market position, the compliance pressure brought by their status is obviously greater. In fact, just considering whether to grant a certain software access port may trigger a legal risk of discriminatory treatment to the counterparty. The author believes that establishing public and fair port and content access standards and management systems as soon as possible is an urgent task to reduce legal risks.

 

Finally, we should actively improve the content management feedback mechanism, deal with unnecessary shielding behaviors as soon as possible, respond to the concerns of market operators and the public in a timely manner, reduce our own pressure on public opinion, and avoid creating the impression of disorderly expansion of capital to the outside world.

 

(This article is translated by software translator for reference only.)