Modern Social Science Research

How to protect enterprise data is a challenge in both theory and practice. The Article 13, paragraph 3 of the current Anti-Unfair Competition Law provides a normative basis for the protection of enterprise data rights and interests under anti-unfair competition law. At the current stage, the core controversial issues concerning enterprise data protection should shift from value justification and pathway conception to the specific application methods of the rules. The application of the newly established enterprise data protection provisions requires clarifying the elements of the object and the elements of the conduct. As to the element of the object, “possession” should be judged by considering whether the data is “possessable” in light of its nature and whether the enterprise has indeed taken control measures; while “legitimacy” serves as a defense element for the establishment of data rights and interests, with the burden of proof placed on the defending party to show that the disputed data lacks a legitimate source. The conduct element reflects the legislative balance between the security of data rights and interests and the development and utilization of data. Regarding the conduct type element, it should be interpreted in a way that allows for the expansion of the modes of data infringement, and the determination of “improper means” should be guided by the principle of proportionality. Regarding the consequence element, the approach of “illegality inferred from the satisfaction of conduct elements” can be adopted to determine whether “market competition order is disrupted,” with a focus on whether the conduct substantially affects the enterprise's operational interests.

Enterprise data; Anti-Unfair Competition Law; Data rights and interests; Conduct regulation