网络广告屏蔽行为的正当性判定——以反不正当竞争法修订草案第16条为视角

The Legitimacy Judgment of the Online Advertising Shielding Behavior—From the Perspective of Article 16 of the Draft Amendment to the Anti-Unfair Competition Law

摘要: 反不正当竞争法的互联网专条具有高度概括性，未明确指出网络广告屏蔽行为正当性。司法实践和理论界评判广告屏蔽行为视角不同，大都对网络广告屏蔽行为作出全然肯定或者全然否定的判断。反不正当竞争法修订草案出台，在屏蔽行为正当性判断中引入“无正当理由”要件。这就要求广告屏蔽行为正当性要在个案中衡量，进而提升社会整体效益。广告屏蔽行为通过反不正当竞争法进行规制需要满足无正当理由这一要件。对无正当理由要件从行为主体、行为客体、行为效果三方面进行细化，于个案中对广告屏蔽行为的正当性判断衡量。

Abstract: The general provisions of the Anti-Unfair Competition Law on the internet are highly general, and do not clearly point out the legitimacy of online ad blocking. Judicial practice and theoretical circles have different perspectives on advertising blocking behavior, and most of them make completely positive or completely negative judgments on online advertising blocking behavior. The draft amendment to the Anti-Unfair Competition Law was promulgated, introducing the requirement of “no justifiable reason” in the judgment of the legitimacy of shielding behavior. This requires that the legitimacy of ad blocking behavior be measured on a case-by-case basis, thereby improving the overall benefits of society. At present, the requirement that ad blocking behavior be regulated through the Anti-Unfair Competition Law needs to meet the requirement of no justifiable reason. The elements of unjustifiable reason are refined from the three aspects of the subject of the act, the object of the act, and the effect of the act, and the legitimacy of the ad blocking behavior is judged and measured in each case.