Fifteenth Keynote Speech of the "Fudan TNCs and Law Forum" The Regulatory Purpose and Restrictive Application of the Customized Search Results Clause in the E-Commerce Law
On July 2, 2021, the fifteenth keynote speech of the "Fudan Transnational Corporations and Law Forum" and the third episode of the third series "TNCs and Information Security" was held successfully online. Assisting Professor GE Jiangqiu of Fudan University Law School delivered the speech titled "The Regulatory Purpose and Restrictive Application of the Customized Search Results Clause in the E-Commerce Law."
At the beginning of the lecture, Professor GE introduced the phenomena of price discrimination and using big-data analysis to price the same product or service to the disadvantage of existing customers by e-commerce platforms. He proceeded to explain the obligation of e-commerce platforms under Article 18(1) of the E-Commerce Law to provide unprocessed search results to customers based on the text of this provision. In doing so, he highlighted that the application of this provision should be restricted rather than extending to all areas due to the lack of operability and other practical reasons. Then, Professor GE argued that although the regulatory purpose of this provision is to "equally respect and protect the lawful rights and interests of customers," the purpose and objective of this provision is both aspirational and restrictive. The "lawful rights and interests" of customers should refer to the customers' right to know and the right to dignity. Other indirect rights and interests, such as the customers' reflected interests, go beyond the scope of customer protection law and should be primarily protected by competition law. Lastly, by adopting a systematic interpretation approach of the E-Commerce Law and the Consumer Protection Law, Professor GE illustrated that the restrictive application of Article 18(1) should limit its subject to customized search results that harm customers' right to know and the right to dignity. The infringement of the former should be assessed from the validity and comprehensiveness of relevant information disclosed by traders to customers, and the violation of the latter should be assessed from whether the trader has substantively discriminated against the consumer.
The commentator of this lecture, LIU Ying, Assistant Professor of Tongji University, pointed out that the use of data without personal identification information (PII) by e-commerce platforms should not be regulated and elaborated on the scope of application of PII. He argued that the enforcement of the E-Commerce Law should balance the protection of customers and the interests of e-commerce platforms.
On July 9, 2021, the sixteenth episode titled "Legislative Progress in Protecting Crticial Facilities of Information Infrastructure and Compliance Responses of TNCs" would be delivered by Associate Professor WANG Yue of Xi'an Jiaotong University School of Law.