Anti-monopoly breaks the ills of big data ＂killing＂
On December 17th, "Big Data Killing" was searched by Weibo again, this time the protagonist was Meituan. Taxi software takes different pricing for the same customers, and booking hotel members costs more than ordinary users … … In recent years, "big data killing" has been frequently searched. Experts pointed out that the Anti-monopoly Guide on Platform Economy (Draft for Comment) (hereinafter referred to as the Anti-monopoly Guide) refines the provisions of the Anti-monopoly Law regulating Internet violations and promotes the platform to better assume social responsibilities. In order to eradicate the chaos of "big data killing", it is essential to improve laws and regulations and strengthen law enforcement, and urge enterprises to be honest and self-disciplined.
"Big data killing" frequency hot search
On December 17th, an article titled "I was cut by a member of Meituan" was screened on social media. Based on his own experience of ordering takeout, the author found that in the same store on Meituan, with the same delivery address and at the same time, the delivery fee for members was higher than that for non-members. According to the article, it was thought that opening take-away members would save money, but the delivery fee of almost all take-away merchants nearby was higher than that of non-members from 1 yuan to 5 yuan.
At that time, "Meituan was killed by explosion" and quickly boarded the hot search list of Weibo on that day. Netizens complained in Weibo, Zhihu, black cats, friends circle, etc. about the differential treatment of old members by Meituan: the delivery fee is higher, the price increases after eating in the same store for two or three times, the full amount of membership is reduced after opening, and even the renewal of membership fee has felt that Meituan’s "likes the new and hates the old". Moreover, this is not only the case with the US Mission, but also the above problems when you are hungry.
Later, Meituan’s take-out issued a statement in response, saying that the difference in delivery fee has nothing to do with membership. Because of the positioning cache in the software, the user’s last historical positioning was wrongly used, which deviated from the user’s actual position, resulting in inaccurate estimation of delivery fee. When placing an order, it will be calculated according to the real delivery address and will not be affected.
The reporter learned that consumers’ complaints about "big data killing" are not just on the takeaway platform. During the "double 11" this year, Ms. Han, a Beijing consumer, found that she booked a hotel through an App, and the price difference was about 1000 yuan.
On September 15th, CCTV named the phenomenon of "big data killing" on the online travel platform, and mentioned that the online travel platform set differentiated prices for the same product or service under the same conditions for tourists with different consumption characteristics. On the same day, a poll conducted on the Weibo showed that 15,000 people thought they had encountered obvious price differences, accounting for nearly 80% of all voters.
In March 2019, the survey results of "Big Data Killing" released by Beijing Consumers Association showed that 88.32% of the respondents thought that "Big Data Killing" was common or very common, and 56.92% of the respondents said that they had been killed by "Big Data". At the same time, respondents believe that online shopping platforms, online travel and online car rides have the most problems in consumer "big data killing", and online travel ranks first.
On December 20, 2018, "Big Data Killing" was elected as the top ten buzzwords in social life in 2018.
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In addition, similar "killing" phenomena have appeared on many platforms such as air tickets and movies.
"Big data killing" needs to be standardized
Nowadays, big data algorithms are becoming more and more advanced, and information customization can meet people’s diversified and personalized needs. Liu Peng, an expert in the field of big data and artificial intelligence, said that the Internet platform can accurately portray netizens by collecting social data and behavioral data, thus reducing the cost of users’ access to information, improving the quality of service to users and adding convenience to life.
According to Wang Wei, director of the Information Security Department of Beijing Jiaotong University, "killing big data" is not technically difficult. He pointed out that after mastering personal information, behavior habits and other data, the platform judges its preferences, user adhesion, price sensitivity, etc., and uses big data technology to achieve "thousands of people", so that different prices or search results seen by different users can be "killed".
Shen Hao, a professor at the Big Data Research Center of Communication University of China, has the same view. He further pointed out that the Internet platform can easily judge whether it is a "stranger" or a "regular customer" through the amount of user data and the frequency of data updates. As a result, the platform makes a lot of money, the interests of merchants and consumers are damaged, and it is easy to lead to monopoly.
Shen Hao introduced that generally speaking, there are two "kill-cooked" routines of the platform: one is to raise prices for users who are not sensitive to prices, and the other is to cultivate old users to develop consumption habits and reduce preferential treatment for old users, that is, to "treat new users better than old users". The "new users" here refer not only to newly registered users, but also to users who have stopped using them for a period of time and then returned.
From the legislative practice of European and American countries, once the behaviors such as "killing big data" are identified as unfair behaviors such as price discrimination, they will be strictly prohibited.
In 1914, the United States promulgated the Clayton Act, which clarified the impermissible practices such as price discrimination, exclusive transactions, and mergers and acquisitions that would seriously weaken competition. Amazon was exposed to differential pricing in 2000, and the prices displayed before and after users deleted cookie data were different. Amazon CEO Bezos apologized afterwards and said that all this was just an "experiment."
In May 2018, the EU General Data Protection Regulation came into effect, and the rights of Internet organizations to freely collect, analyze and manage user information will be strictly limited and regulated. On December 15, 2020, the European Union promulgated the draft Digital Market Law. Hong Yanqing, a senior researcher at the Peking University Institute of Rule of Law and Development, said that the explanatory memorandum of the draft pointed out that a few large platforms are increasingly serving as portals or "gatekeepers" between enterprise users and end users. These "gatekeepers" have substantial control over the access to the digital market, which leads many enterprise users to have greater dependence on these "gatekeepers" and in some cases lead to unfair behavior towards enterprise users. Article 55 of the draft clearly requires the gatekeeper to use data: in order to ensure that enterprise users can obtain relevant data, the gatekeeper should allow them to obtain data free of charge without hindrance according to the requirements of enterprise users, and should also allow the third party contracted by enterprise users to access these data. The "gatekeeper" should also facilitate real-time access to these data through appropriate technical measures.
At present, there are laws such as E-commerce Law and Consumer Protection Law that regulate the "big data killing" behavior in China, but in fact, consumers often face the problem of proof when they encounter "big data killing".
In 2019, when the Beijing Consumers Association released the survey results of "Big Data Killing", it pointed out that operators usually defend themselves on the grounds of product model or configuration, enjoying package discounts, and different time points, and do not disclose specific algorithms, rules and data. On the contrary, consumer rights protection is often in a difficult position to prove. The reporter inquired about the referee’s document network and found that some consumers had sued a take-away platform to the court on the grounds of "big data killing", but because of the difficulty of proof, both the first instance and the second instance lost.
Anti-monopoly has a bright sword for "killing big data"
In this context, the Anti-monopoly Law (Revised Draft) that has been completed and the Anti-monopoly Guide that has just finished soliciting opinions bear the expectations of all sectors of society.
Zhai Wei, executive director of the Competition Law Research Center of East China University of Political Science and Law, pointed out that the Anti-Monopoly Guide refines the relevant provisions of the Anti-Monopoly Law regulating the Internet platform. Article 17 of the guide clearly points out that operators in the market-dominant platform economy may implement differential transaction prices or other trading conditions, new and old trading counterparts, differential standards, rules and algorithms, and differential payment conditions and trading methods based on big data and algorithms, according to the payment ability, consumption preferences and usage habits of the trading counterparts.
At the same time, the Anti-Monopoly Law (Revised Draft) clarifies four possible legitimate reasons for operators in the field of platform economy to implement differential treatment, namely, to implement different trading conditions according to the actual needs of the trading counterparts and in line with legitimate trading habits and industry practices, to carry out preferential activities for the first transaction of new users within a reasonable period of time, to carry out random transactions based on the rules of fairness, reasonableness and non-discrimination on the platform, and other reasons that can prove the legitimacy of the behavior.
Associate Professor Zhong Gang, executive director of the Competition Law Research Center of East China University of Political Science and Law, further explained that the clear justification is not to give the merchants an opportunity, but to follow the market logic and maintain the normal profit space of the merchants. According to Zhong Gang, judging whether "big data killing" is established in legal procedures will also give both parties the same right of proof.
Enterprises should attach importance to anti-monopoly compliance
The strong scale effect and network effect of the Internet industry itself are inherently exclusive to competition. Xiong Hongru, an associate researcher in the Innovation and Development Research Department of the State Council Development Research Center, pointed out that "the big is not a problem, but the big bullying the small, algorithm collusion and even governance risks within the platform".
"The Anti-Monopoly Law protects the interests of consumers." Zhang Dezhi, director of the Consumer Supervision Department of the China Consumers Association, said, "I hope that after the revision of the Anti-Monopoly Law and the promulgation of the Anti-Monopoly Guide, it will be reloaded to help create a business atmosphere of fair competition and let consumers become real beneficiaries."
Yu Zuo, Secretary-General of the Competition Policy Committee of China Institute of Industrial Economics, pointed out that monopoly enterprises abuse their dominant market position and set unreasonable high prices, which will definitely damage the interests of consumers in the end. It is expected that in the future, law enforcement departments will strengthen law enforcement in accordance with the revised Anti-Monopoly Law and the Anti-Monopoly Guide, and strictly investigate behaviors such as "big data killing" involving price discrimination and abuse of market dominance, so as to make the market compete fairly, improve product quality and benefit consumers.
"The life of law lies in its implementation. Administration according to law is the key link of law implementation, and consciously abiding by the law is an important condition for law implementation. " Zhong Chun, an associate professor at Jinan University Law School, said that Internet companies are not short of professional knowledge or professionals, and they should strive to comply with regulatory requirements in anti-monopoly compliance in the future.
With the increasing attention of the regulatory authorities and the maturity of the market, the domestic anti-monopoly laws and regulations and the level of law enforcement will be improved and improved rapidly. Lv Laiming, a professor at the Law School of Beijing Technology and Business University and vice president of the Beijing E-commerce Law Research Association, suggested that "fines are not the only way. When enforcing the law or supervising, administrative supervision departments can also take interviews and guidance to further urge them to rectify according to law."
To solve the chaos of "big data killing", in addition to improving laws and regulations and strengthening law enforcement, it is more important for enterprises to abide by the law, be honest and self-disciplined.
"Internet platform enterprises should strictly abide by anti-monopoly laws and regulations and maintain fair competition in the market." When answering a reporter’s question, the relevant person in charge of the Anti-monopoly Bureau of the General Administration of Market Supervision suggested that enterprises should sort out their own business practices in accordance with the provisions of the Anti-monopoly Law and not engage in monopolistic behaviors prohibited by the Anti-monopoly Law. At the same time, respect the law, abide by the law, and effectively strengthen anti-monopoly compliance management in accordance with the requirements of the Anti-monopoly Compliance Guide for Operators.
Xue Jun, director of Peking University E-commerce Law Research Center, suggested that enterprises should establish a socialized appraisal mechanism according to the application scenarios of the algorithm and its impact on citizens’ basic rights and interests, so as to avoid the possible antitrust consequences of the algorithm.
Only when laws and regulations are "long teeth", supervision plays an anti-monopoly combination boxing, and enterprises are promoted to self-discipline and social co-governance, can we get rid of the stubborn disease of "killing big data", change "killing" into "familiarity" and turn "first-time customers" into "repeat customers".