Docket No.: 3789, second instance (终), civil case (民), (2019) Beijing Intellectual Property Court (京73)

Lower Court Docket No.: 28643, first instance (初), civil case (民), (2018) Beijing Haidian District People's Court (京0108)

Platform data can be divided into public data and non-public data. The illegal capturing of non-public data to which access rights have been set is of obvious impropriety. Capturing the data from a platform and storing it may lead to the leakage and infringement of the users' personal information and damage the platform's right to the relevant data, constituting unfair competition; Since it is an unfair act to capture and store the platform data, the subsequent use of such data for display and analysis does not have a legitimate basis as the source of the data is illegal. In addition, if it is impossible to prove that public platform data has been captured through normal channels, the act of capturing the public data also constitutes unfair competition.

STATEMENT OF THE CASE AND FACTS

Defendant-Appellant: Hunan Eefung Software Co., Ltd. ("Eefung Software")

Plaintiff-Appellee: Beijing Weimeng Internet Technology Co., Ltd. ("Weimeng")

Weimeng is the operator and service provider of the Weibo platform and has the rights and interests of the Weibo data protected by the Anti-Unfair Competition Law. In its "Eagtek" system, Eefung captured a large amount of Weibo data without permission, displayed it in full text in the Eagtek system, formed it into data products through processing and analysis and sold them to users for a fee. Weimeng claimed that the act of Eefung was an act of unfair competition that had illegally acquired, stored, displayed and used Weibo data, and that Eefung should bear the corresponding legal responsibility.

The judgments of the court in both the first instance and the second instance combined the opinions of both parties and the evidence of this case, and analyzed whether the act of capturing, storing, displaying and analyzing Weibo data by Eefung had been in violation of Article 12 of the Anti-Unfair Competition Law from the following dimensions.

First, whether there was a competitive relationship between Weimeng and Eefung. The Anti-Unfair Competition Law tends to protect the interests of multiple parties, and should not construe and limit competitive relationships in a narrow sense. Eefung unfairly obtained Weibo data and used it to provide services of commercialized public opinions, which, while gaining real benefits without paying the costs, would reduce the business benefits that Weimeng may have gained by using the data. Therefore, there was a competitive relationship between Weimeng and Eefung.

Secondly, whether Eefung's way of acquiring Weibo data was legal. Based on the evidence in this case, the court found that the Weibo content in the Eagtek system had been published at a more precise time and included content that could only be accessed by Weibo users after they had logged in and went beyond the scope of normal access by users. Therefore, the court held that Eefung had captured non-public and public data from the Weibo platform through illegal means. In addition, Eefung had stored the data after having captured it. Such acts of Eefung may lead to the leakage and infringement of the users' personal information and damage the right of Weimeng to the relevant data, constituting unfair competition. As it was an unfair act of Eefung to capture and store the data of Weibo, the subsequent use by Eefung of such data for display and analysis in the Eagtek system did not have a legitimate basis as the source of the data was illegal. Eefung claimed that its data had come from the data interface, but the claim lacked a factual basis. Furthermore, the facts it had claimed in the first instance and the second instance contradicted each other, and part of the evidence it had submitted in the second instance proceedings was not new, so the court did not support the claim.

Finally, whether Weimeng's legal rights and interests had been harmed. Weimeng had the legal rights and interests of the Weibo data involved in this case, and the accused act of Eefung had affected the performance of the terms of the agreement between Weimeng and its users regarding data processing and security; Eefung had captured Weibo data through abnormal technical means, destroying or bypassing the protection measures set by Weimeng. Also, it had changed the display form of Weibo in the Eagtek system, changing the access and display rules set by Weimeng for Weibo data and affecting the normal functioning of the product. Eefung had captured a large amount of Weibo data in real time, which had increased the operating cost of Weimeng.

In summary, the court eventually ruled that Eefung had violated Article 12 of the Anti-Unfair Competition Law and constituted unfair competition, and thus ordered Eefung to stop its acts accused in this case, publish a statement to eliminate the impact, and compensate Weimeng for an economic loss of RMB 5 million.

Wu Zifang and Wu Fan, lawyers of Beijing Rongtai Law Firm, participated in this case as the representatives of the Plaintiff-Appellee, Weimeng.

ANALYSIS

In this case, the court divided Internet data into "public data" and "non-public data" from the perspective of balancing the interests of the operators and the public interests. Data for which no access rights have been set is generally open to the public; Data to which access rights have been set through login rules or other measures is non-public data.

This case has adopted the paradigm of judging the legitimacy of competitive behaviors. When acquiring "non-public data", access can only be possible by breaking or bypassing the access rights by technical means, which is clearly an unfair act. The key to determining whether an act of capturing "public data" is legitimate is to see whether the capturing means are legal and legitimate. Ineligible data storage may lead to the leakage and infringement of users' personal information and affect the security of the platform data. It is an unfair act to capture and store data, and the subsequent use of such data for display and analysis does not have a legitimate basis as the source of the data is illegal.

Although Internet connectivity is promoted, it is still necessary to carry out specific analysis on specific behaviors, instead of rigidly deciding that public data can be accessed arbitrarily. In addition, the judgment of this case has also discussed the rights and interests of platform data from the perspective of users' personal information and data security, affirming the role of data protection in promoting the rights and interests of both the users and the public. This case has important reference value and guidance for future data protection and how to take into account the rights and interests of the information accessors, information users and the public, and delineate the boundaries of acts on the basis of a balance of rights and interests.