Today we are going to discuss legal problems concerning the 360buy blocking Etao.com, Alibaba’s price comparison website,’ and its plug-ins. And it shall be first pointed out, the author has no relation with either party of the event. The introduction to the event background:
In November of 2011, 360buy took technical measures to block the price search engine of Etao, who afterwards replied it would no longer index the price data of 360buy by Weibo. Yet in the price war between 360buy and Suning, Etao again published the live price comparison between 360buy and other online shopping stores. And in recent, 360buy further blocked the browser plug-in of Etao on 360buy.com, and the plug-in is designed to show the prices on different websites of the same product. Etao stated 360buy is paralyzing its software.
The issue involves two main legal problems, and the analysis is as following:
Q1: Is it by law for Etao indexing prices on 360buy with no license?
Internet is also operating on rules, and the most fundamental rule of the search engine is with no access for an engine to mine the website for information without the content granted. Therefore, considering the disallow code added into robot.txt by 360buy for shielding Etao, the search engine shall no longer capture the data from it.
Possibly, the reader may raise the question, why Etao could not like other Internet visitors to browse the open information on 360buy? The answer is the visits by consumers is different from the data capture by competitors, and the consumers could only get part of the pricing data, yet the professional searcher could capture the prices of millions of products in a time, accompanying with its pricing comparison, the search engine’s visit is totally different in nature.
The relation between Etao and 360buy is regulated by Anti-unfair Competition Law. By Article 2 of the law,
“An operator shall, in transactions in the market, follow the principle of voluntariness, equality, fairness, honesty and credibility, and observe generally recognized business ethics. And the operator shall not contravene the provisions of this Law, damage the lawful rights and interests of other operator, and disturb the socio-economic order. “
So in my opinion, despite the vacancy of legislature on technological block of web search, the search engine shall follow the widely accepted search rules, or it may damage the socio-economic order with the good faith violated.
Q2: Is it legal for 360buy blocking Etao plug-in on its website?
Back to the case, as noticed in the statement from Etao, it criticized 360buy of “a malicious damage” for its blocking Etao plug-in. Then, does that criticism makes sense? To make an example: a consumer stepped into an appliances store, he is greeted by a shopping guide, who claim the products sold with a cheaper price in the shop next door, could the shop keep drive the guide away? 360buy would say, why not? Coz I’m the store owner. Yet Etao may say I’m the guide on customer’s license, you could not let me go. In the meantime, Dangdang (NYSE: DANG), Coo8 and Gome (SEHK:493) which are also the B2C gaint in China, make a statement to support Etao: we welcome the guide.
To our understanding, the store runner in real life surely has the right to drive away the guide, so does on the Internet. Even the plug-in is licensed by the user, Etao could not indicate others’ prices on 360buy on its will unless agreed by 360buy. If 360buy’s block were conducted on its competitor, like Dangdang, Coo8 or Gome, it’s obviously against the law. However, what we are discussing is the block on 360buy itself, so I prefer to call it a proper right exercise rather than a malicious damage.
Actually, the consumer is not always right. As believed by me, Etao is jeopardizing the commercial environment of E-commerce, desire it apparently could meet the demands of consumers. The main reason is, with all the data captured by Etao, the prices could become totally transparent, and thus homogeneity competition is inevitable. In fact, however, the big online retailer like 360buy normally has a very complicated pricing strategy, with a specific arrangement of promotion products, merger profit products and money making products, as well as a deliberated business strategy. With the price comparison by Etao, the consumer could purchase the lowest pricing product, and once it persists in so doing, no website could earn their profits. Actually it’s also a problem haunting Taobao, the online mall of Alibaba, which has lost in price competition instead of the competition.
At last, Alibaba’s Taobao blocked Baidu search several years ago, Jack Ma, CEO of Alibaba criticized Baidu a vicious search. After that, Baidu stop catching Taobao’s page (at least no complaints from Alibaba have been heard after then). Yet in the case of this time, we could still see 360buy’s prices on Etao, and that brings me a new understanding of so called “vicious”.
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