Double Eleven is about to start, and major e-commerce companies are gearing up and entering a state of preparation.

However, the content of the two Dafa deliberations made the atmosphere of this year’s Double Eleven suddenly tense.

On October 31, the Standing Committee of the National People’s Congress reviewed the draft E-commerce Law and the revised draft Anti-Unfair Competition Law. The two laws simultaneously said NO to online shopping fraud.

The second review draft of the E-commerce Law clearly stipulates four aspects: "Platform operators, bidding ranking advertising, industrial and commercial registration entities, and preventing platform 'stores from bullying customers'" to further strengthen the protection of consumer rights and interests. protection.

Four hot spots in the second review draft of the E-commerce Law

Hot spot 1: Platform operators move from “knowingly knowing” to “should know”

Second review draft regulations , if an e-commerce platform operator “knows or should know” that an operator on the platform has infringed upon intellectual property rights, it shall take necessary measures such as deleting, blocking, disconnecting, and terminating transactions and services.

Prior to this, the first review draft stipulated that if a third-party e-commerce platform "knowingly" infringes on intellectual property rights by an e-commerce operator on the platform, it should delete, block, disconnect, terminate transactions and services in accordance with the law. and other necessary measures.

Cao Lei, director of the China E-Commerce Research Center, said that the shift from "knowingly" to "should have known" reflects stricter constraints on platform operators, which will help urge platform parties to shoulder the responsibility of respecting intellectual property rights. responsibility, further crack down on online infringement and counterfeiting, and purify the online shopping environment.

Hot point 2: Bidding ranking products must be marked with "advertisement"

The second draft stipulates that e-commerce platform operators should base their products or services on the price, sales volume, credit level, etc. The search results are displayed to consumers in a certain manner; for goods or services ranked by bidding, "advertising" should be clearly marked.

At the same time, the second review draft also points out that e-commerce operators should comprehensively, truly and accurately disclose product or service information to protect consumers’ rights to know and choose. E-commerce operators shall not infringe on consumers' right to know through false propaganda, fictitious transactions, fabricated user reviews, etc.

In fact, bidding ranking is advertising. If it is not marked, it will mislead consumers in their evaluation of goods or services.

Wu Shenkuo, secretary-general of the China Internet Society Research Center, said that clarifying the advertising attributes of bidding rankings will better protect consumers’ right to know, but to implement this, it is necessary to improve e-commerce through extensive legislative propaganda. Business operators must understand this obligation and take specific measures to ensure that offenders are duly punished.

Hot Topic Three: Clarifying the Subjects of Industrial and Commercial Registration

The second draft proposed that e-commerce operators should handle industrial and commercial registration in accordance with the law. However, there are exceptions to the sale of self-produced agricultural and sideline products, the sale of cottage industry products, individuals using their own skills to engage in convenience labor activities that do not require a license according to law, and those that do not require industrial and commercial registration in accordance with laws and administrative regulations.

Meng Xianhuang, chairman of the Shanghai Pudong E-commerce Association, believes that activities such as the operation of self-produced agricultural and sideline products are difficult to define and can easily be exploited for marginalization. In fact, there is a phenomenon of consignment sales of products in rural areas, so it may be difficult to obtain evidence for industrial and commercial law enforcement.

Professor Wang Wenhua of Beijing Foreign Studies University School of Law said that there are exceptions to the rules. It is unrealistic to carry out industrial and commercial registration for all, so principles and exceptions should be combined. This reflects a certain spirit of humanistic care and also promotes the overall development of China's e-commerce.

Hot Topic 4: Preventing platform “stores from bullying customers”

The second review draft points out that e-commerce platform operators are not allowed to use service agreements, transaction rules and other means to target operators within the platform. impose unreasonable restrictions on transactions, transaction prices, etc. or impose unreasonable transaction conditions, or charge unreasonable fees to operators within the platform.

Cui Congcong, deputy director of the Internet Governance and Legal Research Center of Beijing University of Posts and Telecommunications, said that it is clear that platform operators must not abuse their market position to infringe on the legitimate rights of small and medium-sized operators, which provides a legal basis for combating "big platforms that bully shops" in accordance with.

“This revision regulates the behavior of operators and builds a fair competition order, which will help ultimately achieve the legislative goals of protecting rights and interests, standardizing order and promoting development.” Cui Congcong said.

Five highlights of the third review draft of the revised anti-unfair competition law

Point 1: Defining unfair competition practices

The third review draft proposes that “business operators "In production and business activities, any act that violates the provisions of this Law, disrupts the order of market competition, or harms the legitimate rights and interests of other operators or consumers" is an act of unfair competition.

The 1993 version stipulates that unfair competition refers to the behavior of operators that violate the provisions of this law, harm the legitimate rights and interests of other operators, and disrupt the social and economic order.

From emphasizing "social and economic order" to "market competition order." It should be said that the new expression meets the requirement of “letting the market play a decisive role in resource allocation” and also adapts to the needs of practical development in the new era.

Point 2: Curbing false propaganda in the e-commerce field

The third review draft details the specific content of false propaganda and clarifies that operators are not allowed to “sales status”, "User reviews" and other false or misleading commercial promotions deceive and mislead consumers.

At the same time, the third review draft also added a provision that clarifies that operators shall not help other operators conduct false or misleading business promotions by organizing false transactions.

If the above regulations are violated, the supervision and inspection department will order the illegal behavior to stop and impose a fine of 200,000 yuan to 1 million yuan; if the circumstances are serious, a fine of 1 million to 2 million yuan will be imposed, and the business license may be revoked.

Previously, the Anti-Unfair Competition Law had relatively broad provisions on the concept of "false publicity". It only stipulated that operators shall not use advertising or other methods to make misleading false publicity about the quality and production ingredients of goods. .

Huang Yong, director of the Competition Law Center of the University of International Business and Economics, believes that operators continue to use "brushing orders" to increase praise and sales. This type of unfair competition can easily mislead consumers, and the new regulations will have a negative impact on the market. Outstanding issues arising from changes have been standardized.

Point 3: Defining the objects of commercial bribery

The second draft defines the objects of commercial bribery. The third item is "state agencies, state-owned companies, enterprises, and institutions." , people's organizations, or state functionaries", the fourth item is "other units or individuals who may use the authority of state functionaries to influence transactions."

During the third review group review, some members of the Standing Committee proposed that market entities are on an equal footing in market competition, and it is inappropriate to single out state-owned units among the targets of commercial bribery.

Some people also suggested that these two types of entities actually use their powers and influence to influence transactions, and suggested merging them.

For this reason, the Legal Committee recommended that the two items be merged and modified to refer to units or individuals that use their authority or influence to influence transactions.

Point 4: Confusing product source restrictions “has a certain impact”

The third review draft proposed that operators cannot use others’ product names, packaging, decoration, etc. that have a certain impact without authorization Or similar logos, you cannot use the main part of the domain name, website name, web page, etc. that has certain influence on others without authorization. You cannot use the names of other people's companies, social organizations and names that have certain influence without authorization.

The reason why it is emphasized that it has a "certain impact" is because a member of the Standing Committee proposed that counterfeiting other people's trademarks constitutes unfair competition that confuses the source of goods. Generally, the counterfeited logo has a certain impact in the relevant field. , the premise is that the relevant public is informed, and the recommendations are clear.

Zhao Zhanhan, deputy director of Beijing Zhilin Law Firm and a special researcher at the Intellectual Property Research Center of China University of Political Science and Law, believes that the possibility of others counterfeiting a trademark that has no influence is relatively small, and even if it is counterfeited, it will have a negative impact on consumers. It will not have much impact on the perception of consumers and the order of market competition. There is no need to regulate it through the Anti-Unfair Competition Law. The infringed party can sue for "trademark infringement" in accordance with the Trademark Law.

Point 5: Industry organizations maintain the order of market competition

The third review draft adds a new provision: Industry organizations should strengthen industry self-discipline, guide and standardize member competition in accordance with the law, and maintain the order of market competition. .

In addition, the third review draft also proposes that when the supervision and inspection department investigates suspected unfair competition, it can seize or detain property related to suspected unfair competition.

Bao Kexin, a member of the Agriculture and Rural Affairs Committee of the National People's Congress, suggested during the group deliberation that day that approval documents should be presented when taking the measures specified in the preceding paragraph, and enterprises should not be inspected or closed at the drop of a hat. , the interests of enterprises should be properly protected.