Pan Jian, Market Supervision Bureau of Taizhou Pharmaceutical High-tech Zone

At present, illegal phenomena such as false advertising, unlicensed operation, trademark infringement, selling fake and inferior products and prohibited items are endless. This not only affects the healthy development of the Internet, but also affects the structure and perfection of the whole social credit system. The author investigated and dealt with a false advertisement case on the Internet through network patrol, and encountered some problems worth pondering and discussing, so I would like to discuss with you.

I. Overview of the case

The party Li is engaged in sports equipment sales and business activities. In order to expand the sales channels of products, they forged the name of XX High-tech Zone Co., Ltd. to entrust others to make web pages, and published the information of sports equipment products and their contact information on the Internet, so that consumers mistakenly thought that the products of the parties concerned were the products of XX High-tech Zone Co., Ltd. In the process of investigation and evidence collection, the parties deleted the publicity webpage and could not browse it. Later, after showing photo evidence, the parties admitted the illegal fact of publishing advertisements on the Internet in the name of XX Co., Ltd., a high-tech zone, and cooperated with the investigation and handling.

in this case, the parties contacted the web page producer through the internet without signing a written contract. After the web page was produced, they found that the produced web page was in conformity with the agreement through the website provided by the web page producer, and then remitted the production fee directly to the producer without asking for the fee voucher. The parties simply don't know who the webpage producer is, and they don't know which website's internet space they are renting.

second, the analysis of the difficulties of the case

1. It is difficult to determine the jurisdiction. According to Article 8 of the Provisions on Administrative Punishment Procedures of the Administration for Industry and Commerce, the administrative punishment for publishing illegal advertisements through the Internet shall, in principle, be under the jurisdiction of the administration for industry and commerce (market supervision and management) where the advertisement publisher is located. However, in the process of investigating the case, because of the concealment of advertising on the Internet, it is difficult to determine the true identity of the producers of operating websites and web pages, and advertisers are rarely directly publishers of advertisements. ① It is not easy to determine which operating website the Internet space used by advertisers belongs to. First, most advertisers publish advertisements on the Internet, and only rent the Internet space of operating websites, and do not necessarily establish hyperlinks on the homepage of operating websites, so that it is impossible to know which operating website space they use from the advertiser's webpage. Second, even if the IP address of the operating website is obtained through technical means, there is no clear law on how to determine the validity of the certificate. Third, there is generally no written agreement between advertisers and operating websites and web page producers, so it is not easy to determine operating websites. ② Web page producers are not suitable as advertisement publishers. First, in the process of advertisers publishing Internet advertisements, the main job of web page producers is to design and produce Internet advertisements, accept the entrustment of advertisers to rent Internet space from commercial websites, and do not directly publish advertisements. Second, it is not easy to determine the true identity of the web page producer if there is no written agreement between the advertiser and the web page producer and no invoice for the production fee. Advertisers are generally enterprises or individuals engaged in business activities. Generally speaking, it does not have the technology and ability to publish advertisements directly on the Internet, so advertisers will not become advertisement publishers in general.

2. It is difficult to collect evidence. Law enforcement officers have limited Internet expertise and lack the ability and means to obtain evidence from the Internet, which brings difficulties to investigation and evidence application. (1) can't guarantee the integrity of the evidence content. At present, law enforcement officers have not been able to download the complete content of false advertisements, especially when the advertising content is expressed in the form of FLASH animation. Because the animation content cannot be downloaded at the same time as the entire webpage, it cannot reflect the whole picture of the advertising webpage, and it is even more impossible to permanently copy and save the entire content as original evidence on a CD or a U disk through some technology. (2) can't ensure timely access to the evidence on the web page. It is convenient to change information on the Internet. For example, when the law enforcement officers accessed the content of the advertisement webpage on the Internet according to the report in this case, the webpage of the party concerned had been deleted, which made it impossible to fix the first-hand direct evidence. ③ The evidential effect of printed web pages is not clear. According to the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation, if it is really difficult to provide the original carrier of computer data to the people's court, a copy can be provided;

the original and the original are more effective than the duplicate. However, it is not clear whether the printed web page can be used as a copy of the original carrier. ④ Web evidence is easily lost through technical operation. Even if the printed web page can be used as a copy of the original carrier, the parties can overturn the probative effect of the printed web page by modifying the content of the web page in time, and the law enforcement officers are unable to retrieve the evidence that the parties modified the web page after the incident from the Internet.

3. Accurate characterization is difficult. To investigate and deal with illegal advertisements on the Internet, the administrative department for industry and commerce (market supervision and management) can only apply the relevant provisions of the existing Advertising Law and the Anti-Unfair Competition Law, and it is controversial which law should be applied for qualitative punishment. ① Think that the Advertising Law should be applied. The act of publishing false advertisements on the Internet violates the provisions of the Advertising Law and the Anti-Unfair Competition Law at the same time. As far as false advertisements are concerned, the Advertising Law is a special law and the Anti-Unfair Competition Law is a common law. According to the principle that the special law is superior to the common law, the Advertising Law should be applied first. Even if the Anti-Unfair Competition Law is applied to determine the nature, the Advertising Law should still be applied when the punishment is imposed. ② It is considered that qualitative punishment should be imposed according to the provisions of Articles 9 and 24 of the Anti-Unfair Competition Law. Internet itself is a virtual space, which is essentially different from newspapers, radio, television, movies and other media forms. Therefore, it is not appropriate to apply the qualitative punishment of the Advertising Law, but should be qualitative according to the "other methods" stipulated in Article 9 of the Anti-Unfair Competition Law. Because the extension of "other methods" stipulated in this law is far greater than that stipulated in the Advertising Law, "other methods" should be used as the bottom clause for qualitative punishment.

3. Suggestions for solving difficult problems

1. Formulate special laws and regulations. At present, the laws and regulations that refer to the content of Internet advertising supervision include the Provisions on Administrative Punishment Procedures of the Administration for Industry and Commerce and the Measures for the Administration of Internet Information Services, which are too general. In view of the difficulty in investigating and dealing with false advertisements on the Internet, it is suggested that special laws and regulations on the management of Internet advertisements should be promulgated as soon as possible, so as to truly "have laws to follow", so as to solve the problems such as vague jurisdiction, unclear evidence effect, and easy differences in qualitative punishment, so as to achieve accurate qualitative determination and implement the responsibilities of network operators.

2. Develop network supervision technology. Strengthen network monitoring and try to develop an electronic evidence preservation system to prevent the occurrence of online trademark infringement. The system has the functions of preserving important data, taking photos of web pages and recording behaviors. In operation, ordinary users can remotely store electronic data online through the web access system after spending a small amount of money, and easily encrypt important materials such as text, video, audio, pictures, web pages, chat records and so on to generate evidence packages, thus effectively preventing the occurrence of trademark infringement incidents. In this way, the victim can save and submit evidence at any time in case of infringement or dispute to protect his rights and interests.

3. Implement the website registration and filing system. Starting with market access is an effective way to narrow the scope of network violations. First, the operators of online commodity trading platforms should provide relevant registration materials to the administrative department for industry and commerce (market supervision and management), including the identity information of the website owner, the main business and basic information of the website. Second, for individual merchants operating on this platform, real-name authentication and credit rating should be implemented, and supervision and reporting links should be set up at eye-catching places on the webpage to encourage the exposure of illegal acts. Third, online merchants who refuse to mend their ways and make rectification ineffective are exposed by the administrative department for industry and commerce (market supervision and management) under their jurisdiction through the news media and included in the "blacklist".

4. Strengthen the means of network supervision and rights protection. First, strengthen communication with online trading platforms. In online trading platforms, such as Taobao, Paipai, Dangdang, etc., the transaction mode is peer-to-peer, and the transaction process is relatively simple, but it is private and difficult to actively supervise. We must strengthen communication with online trading platforms, establish a network rights protection system, comprehensively collect consumers' online demands, and actively find the source of the case from consumers' complaints and reports. The second is to establish a professional network inspection team. In view of the timeliness of obtaining evidence of illegal acts by using various web links, grass-roots industrial and commercial (market supervision) law enforcement departments need to put on record the main body of the network market within their jurisdiction, improve the supervision database in their jurisdiction, conduct organized, purposeful and focused daily supervision on the websites of enterprises within their jurisdiction, and actively find clues of network illegal cases through inspections. The third is to encourage social supervision and reporting. On the one hand, encourage consumers to enhance their awareness of rights protection and give timely feedback to online market players;

On the other hand, encouraging online market participants to take the initiative to report and expose illegal acts to the administrative department for industry and commerce (market supervision and management) is conducive to improving the supervision efficiency of the administrative department for industry and commerce (market supervision and management).