Dialogue New Media | Have you been "killed" by big data?

Background

According to a survey conducted by the Beijing Consumers Association, many respondents said they had been "killed", and online shopping platforms, online travel, and online car-about mobile clients or websites were "hardest hit areas". The specific performance is the same platform, the same time period, the same product, the price of the order is quite different, and the multi-payer is still a regular customer of the platform.

The platform obtains users' personal information and makes corresponding data processing without permission. Not only does it not provide users with better services and more cost-effective prices, but it uses users' personal habits to raise prices and obtain benefits. The act of "killing ripe" itself seriously disturbs the market order and infringes upon the legitimate rights and interests of consumers, and does not have the necessity, legitimacy and legitimacy.

From today's point of view, in order to protect the legitimate rights and interests of consumers, the phenomenon of "killing" big data requires not only the mutual connection and reasonable regulation of the Consumer Rights Protection Law and the Anti-Monopoly Law. In the long run, the upcoming implementation The "Data Security Law" and the upcoming "Personal Information Protection Law" have also become powerful legal weapons against market chaos.

Big data specifically refers to the Internet platform to use their own user data and market dominance, the old users to implement "price discrimination" behavior, and thus maximize profits. Therefore, this article from the consumer rights infringement-personal information protection-data compliance use three levels to analyze the big data "kill cooked" legal issues.

1. consumer rights infringement

Based on personal information and using algorithms to process data, the phenomenon of big data killing is most intuitively reflected in the economic field. E-commerce platforms have turned the means of production that should have been reasonably distributed and the big data that serves people into a tool of price discrimination by issuing coupons, designing full reduction rules, creating shopping festivals and other precise operations.

The act of "killing ripe" seriously infringes on the rights and interests of consumers. The platform pushes goods or service information to consumers according to the obtained data, which may damage consumers' right to know. Article 8 of my country's "Consumer Rights Protection Law" stipulates that consumers have the right to know the true situation of commodity prices, including whether the prices are public. When the platform launches the "member" service, it often advertises that it gives the maximum discount or the discount higher than all other activities, but the fact is not the case. At the same time, differential pricing by merchants for the same product or service may also undermine consumers' right to fair trade. According to Article 10 of the Law on the Protection of Consumer Rights and Interests, "Consumers have the right to fair trade. When purchasing goods or receiving services, consumers have the right to obtain fair trading conditions such as quality assurance, reasonable prices and correct measurement, and the right to refuse compulsory trading by operators." Raising prices in an unreasonable form for old users violates the basic principle of "fair trade.

At the same time, big data "killing" also constitutes a market monopoly. On February 7, 2021, the Anti-Monopoly Commission of the State Council issued and implemented the Anti-Monopoly Guidelines for the Platform Economy (hereinafter referred to as the "Guidelines") to prevent and stop monopolistic practices in the platform economy and protect fair market competition. When answering reporters' questions on the guide, the relevant responsible personnel replied that China's platform economy has developed rapidly, and new business type and new models have emerged one after another, which has played an important role in promoting high-quality economic development and meeting the people's growing needs for a better life. But at the same time, there are increasing reports and reports on suspected monopoly issues such as "big data killing" in the platform economy. These behaviors have seriously damaged fair market competition and the legitimate rights and interests of consumers. The "Anti-Monopoly Law" applies to all industries, and all types of market entities should be treated equally and equally. The Internet platform economy is not a place outside the law. As for the judgment standard of "big data killing", the Guide specifies the factors that can be considered to constitute differential treatment, including the implementation of differential trading prices or other trading conditions by operators in the platform economy based on big data and algorithms, according to the payment ability, consumption preferences and usage habits of the trading counterparts. In practice, if operators in the platform economy have a dominant market position and implement different transaction conditions such as transaction prices for different consumers, it may constitute differential treatment.

Platform merchants use their own data and algorithmic advantages, use customer trust and platform stickiness, combined with the characteristics of online transactions, use price as a means, infringe on consumer rights and interests is essentially a price fraud. However, due to objective factors such as the concealment of the algorithm and the excessive burden of proof of consumers, consumers are obviously in a weak position. Therefore, in order to protect the legitimate rights and interests of consumers, consumers should complete the preliminary proof of big data's "killing" behavior, and it is undoubtedly a better solution to assign the proof of causality to e-commerce operators. For serious big data "killing" behavior, we should also increase the intensity of punishment and further clarify the responsibility.

2. Personal Information Protection

Platform merchants obtain their personal information through consumers' daily consumption behavior. For example, when we browse or share the picture of a certain commodity on WeChat or microblog platform, and then open Taobao app, it is "unexpectedly" displayed on the "guess what you like" page. There is also an e-commerce platform that purchases anonymous user browsing, praise, collection, shopping and other records from other platforms, and then identifies the personal identity in reverse by bumping into the library to improve the user portrait for accurate marketing. These data include price tolerance, ability to pay, choice preferences, household composition, website or APP page stay time, geographic location and even equipment used. Article 4 of the "Personal Information Protection Law (Draft)" (hereinafter referred to as the "Draft") stipulates that "Personal information is all kinds of information related to identified or identifiable natural persons recorded electronically or otherwise, and does not include anonymized Processing information." The definition of the concept of "personal information" is adopted in the way of identification and association. For example, when we scan the two-dimensional code in a restaurant, we need to enter the mobile phone number to log in. We can obtain the bound ID card information through the mobile phone number of the individual citizen, and then associate it with the individual citizen.

Therefore, according to the provisions of the draft, on the one hand, network operators should follow the principles of legality, legitimacy and necessity in collecting and using personal information, make public the rules of collection and use, and clearly indicate the purpose, method and scope of collecting and using information, and obtain the consent of the collector. The e-commerce platform is strictly prohibited from using the collision library to reverse identify personal identity, directional push and other issues, and the separate consent of the information subject should be obtained before using the information. On the other hand, network operators shall not collect personal information unrelated to the services they provide, shall not collect and use personal information in violation of the provisions of laws and administrative regulations and the agreement between the two parties, and shall handle the personal information they keep in accordance with the provisions of laws and administrative regulations and the agreement with users. The user enters the searched goods in an e-commerce platform, and the platform uses algorithms to kill the ripe behavior based on the user's past search and browsing records. The e-commerce platform needs to provide the user with a "universal ranking" option so that the user can choose goods that are not based on their personal characteristics.

On April 29, 2021, the publication of the "the People's Republic of China Personal Information Protection Law (Second Draft)" marked the imminent introduction of my country's personal information protection legislation. Big data killing is only a specific phenomenon of the risk of personal information. "killing" is to secretly "rob" our pocket money, but the "personal information" obtained behind it really wraps all aspects of our daily life. Our words, deeds and actions have become open and transparent.

3. Data Compliance Use

At the data level, big data "killing" belongs to "data manipulation" in data use, that is, platform merchants give greater weight to non-market value determinants (such as consumers' willingness to pay, ability to pay, purchasing habits, trust in the platform, etc.) other than commodity pricing factors such as supply and demand, marginal cost and other commodity pricing factors when presetting algorithms on the basis of mastering massive consumer data, and embed algorithm programming requirements, ultimately, consumers are subjected to commodity prices that do not conform to the law of price.

Data exists objectively, and there is no original sin in data technology, but the purpose and manner of use after obtaining the data determines whether the behavior is legal and compliant. Through the collection, retrieval, analysis and mining of a lot of information, the platform uses specific algorithms to carry out "accurate portraits" of consumers, and finally realizes the individualized pricing behavior of "thousands of people and thousands of faces. In the face of different age, gender, region and even the use of equipment user groups, at the same time on the same product to show different prices and precision premium, and even the use of consumer trust in the platform and user stickiness, and finally achieve the price of old customers The fundamental purpose of discrimination to obtain economic benefits. Data is a double-edged sword. Legal and compliant use of data can complete product recommend according to users' personal characteristics and improve user experience. However, it is illegal to break through the moral bottom line to abuse and implement price deception.

The whole process of "killing people and killing people" makes innocent "old customers" black and blue all over, and at the same time, data security should be paid more attention. On June 10, 2021, the 29th meeting of the Standing Committee of the 13th National People's Congress passed the the People's Republic of China Data Security Law after deliberation, which will be officially implemented on September 1, 2021. The law provides a clear definition of "data" and "data security". Data refers to any record of information electronically or otherwise. Data processing, including data collection, storage, use, processing, transmission, provision, disclosure, etc. Data security refers to taking necessary measures to ensure that data is in a state of effective protection and legal use, and has the ability to ensure a continuous security state. Strengthening the management and protection of data plays an important role in the overall economic and social development of the country. Once data is tampered with, destroyed, leaked or illegally obtained, illegally used, it will bring harm to personal safety, social public safety and even national security.

To strengthen data supervision, in addition to reasonably linking up the data security law with the national security law, the network security law and the foreign investment law at the legislative level, e-commerce platforms and enterprises that process important data, especially enterprises that provide cross-border services, should clarify the legal obligations of data processing and establish an internal data security protection system.

Conclusion

The phenomenon of "killing familiarity" based on obtaining personal information and supported by big data and algorithms is a special product of the Internet economy era, but there are more deeper problems that are easy to be ignored. Just as the basic principles of protecting the rights and interests of citizens and organizations related to data, encouraging the rational and effective use of data, ensuring the orderly and free flow of data in accordance with the law, and promoting the development of digital economy with data as the key element are generally in line with the historical trend of the era of personalized service, Only by making rational use of data can we give better play to the positive energy of big data in science and technology and economy.