The provision of prohibiting abuse of dominant market position in China’s antitrust law is limited to such types of behavior as “monopoly pricing” and “limited transaction”, which not only narrows the scope of regulation, but also blurs the criteria of regulation. A lot of anti-competitive behaviors in the field of big data are not stipulated by the antitrust law, which may lead to a lack of supervision. Furthermore, the current regulatory methods do not focus on the analysis of big data market behaviors, but use the deductive method from general to individual, tending to assume the type of monopoly behaviors on the basis of law. The double failure of legal provisions and interpretation methods contrasts strongly with the regulatory requirements in the field of big data. To tackle this problem, the traditional regulatory methodology needs to be adjusted in accordance with the characteristics of the big data market from the three aspects: market power identification, abuse behavior screening, and competition damage effect analysis.
First of all, we should take the data value chain as the basis, and fully consider the network effect, cross-border competition, dynamic competition and many other characteristics of the big data market, to evaluate the market power. Secondly, with the help of the infringement identification of “exclusionary abuse” and “exploitative abuse”, we may quickly identify and summarize the behavior types of market dominant position abuse in the field of big data. Lastly, we should establish specific identification methods and competitive damage analysis to regulate those anti-competitive behaviors associated with big data such as “restricting interoperability” and “excessive collection and use of data”.
As China’s anti-monopoly law is being comprehensively revised and improved, we should take this opportunity to modify the existing provisions and improve the regulatory methodology in view of the development of the digital economy. For one thing, the legislature should summarize special factors according to the characteristics of big data industry in the legal provisions defining relevant markets and evaluating market power. For another thing, China should refer to the legislative model of the EU competition law and determine “exclusionary abuse” and “exploitative abuse” as the basic types of the abuse of dominant market position, so as to expand the scope of application of antitrust laws. In addition, China should issue antitrust law enforcement guidelines, summarize the types of abuses common in the field of big data, and formulate corresponding antitrust law enforcement methods and regulatory measures.