电商平台差别化定价的违法性分析与因应

Analysis of Illegality and Response of Differentiated Pricing of E-Commerce Platforms

摘要: 电子商务领域个性化推荐算法的普遍应用极大地提高了市场交易效率，但是这种利好在电商平台野蛮生长下正逐渐异化为侵犯消费者权益、扩大市场恶性逐利的工具。电商平台差别化定价并非技术中立行为，其具有深层的违法性质，当坚决予以打击治理。然而，传统的规制手段收效甚微。法律上存在无法可依、有法难依的情形；算法治理面临公开与否的悖论和技术层面的难题；以及司法救济手段的低效能导致消费者维权意愿低下等等。面临的这些现实困境呼吁新的治理手段。有鉴于此，应以电商平台差别化定价行为的形成过程为锚点，从定价行为、个人信息处理、算法治理三个方面探求出规制的因应之策。以完善相关法律制度为抓手规制定价行为；由“赋权”转向“赋能”以实现对个人信息和算法滥用的一体化治理；最后以强化司法保障为兜底手段进行有效事后救济。

Abstract: The widespread application of personalized recommendation algorithm in the field of e-commerce has greatly improved the efficiency of market transactions, but under the wild growth of e-commerce platforms, this benefit is gradually alienated into a tool to infringe on the rights and interests of consumers and expand the vicious profit of the market. Differentiated pricing of e-commerce platforms is not a technology-neutral behavior, but has a deep illegal nature, which should be resolutely cracked down on. However, the traditional regulations have achieved little effect. At the legal level, there is no law that can be followed or difficult to rely on the law correctly; the algorithm governance faces the paradox of openness and technical problems, and the inefficiency of judicial remedies can lead to the low willingness of consumers to defend their rights and so on. These real dilemmas call for a new means of governance. In view of this, the formation process of differentiated pricing behavior of e-commerce platforms should be taken as the anchor point, and the regulation should be explored from three aspects of pricing behavior, personal information processing and algorithm governance to improve the relevant legal system to regulate the pricing behavior; from “giving rights” to “giving capabilities” to achieve an integrated governance of personal information and algorithm abuse; finally, to strengthen the judicial protection as the bottom of the means to carry out effective after-action relief.