In the era of mobile Internet, people watch news, chase plays, shop, even read and learn through mobile phones. In order to enhance the stickiness of users, all kinds of APP push all kinds of information to users through various mechanisms. Among them, recommending hot news, hot articles, hot selling commodities or hot dramas according to reading volume, purchase volume or download volume is one of the most common ways, and network users often make choices accordingly. However, some unscrupulous merchants regard this as a good business opportunity and offer paid false bill-brushing and volume-brushing services one after another. Some commodity or service providers and even network writers have quietly become their customers. False brush volume is obviously an illegal act that violates the principle of good faith and business ethics. However, how should we apply the law when stopping such illegal acts? Let's look at a recent case:

In the case of unfair competition dispute between Tencent Computer Systems Company, Tencent Technology (Shenzhen) Company, Shutui Network Technology Company and Tan Mou "(2019) Yu 05 Min Chu 3618, hereinafter referred to as" False Brush Volume Case ", Tencent claimed that the defendant used technical means to artificially increase the number of views, clicks and fans of articles and videos in Tencent-operated online products such as WeChat and Tencent Video. The traffic falsely swiped by the defendant misled consumers, infringed on the interests of consumers, misled Tencent's judgment and decision-making on products and specific users based on traffic statistics, and also harmed Tencent's commercial interests, thus constituting unfair competition.

After hearing the case, Chongqing No.5 Middle School held that "it is self-evident that in order to deliberately avoid the supervision of Internet operators without the permission of Internet operators, it is bound to take the existing technical means in the Internet field such as insertion, carrying, linking or hijacking to secretly carry out the act of brushing." According to this, "the defendant's behavior characteristics of providing false brush volume services with compensation conform to the provisions of Item (4) of Article 12 of the Anti-Unfair Competition Law of the People's Republic of China on 'other behaviors that hinder or undermine the normal operation of network products or services legally provided by other operators' and should be adjusted by the Anti-Unfair Competition Law".

This judgment has attracted high attention from the industry and the media. Legal Daily said that "this case has become a national case in which the Internet false volume service is directly applicable to the Internet Special Article (Article) of the Unfair Competition Law, and has definite practical value and theoretical significance for regulating the Internet 'grey production'." The newspaper also quoted Deng Hongguang, a professor at the South Institute of Political Science, Law and Intellectual Property, It is believed that "after fully demonstrating that this case should constitute unfair competition, it is also determined through the form of evidence rules that the composition belongs to the" profit-making technology segment "that hinders or damages the normal operation of network products or services legally provided by other operators, which is of great value and significance to regulate the" grey production of interconnected network. " PaRR (Policyand Regulatory Report), a news and information organization that pays close attention to the latest developments in the fields of global anti-monopoly, anti-bribery and anti-unfair competition, also analyzed and commented on the case.

Although the author agrees with the conclusion of the judgment, he does not agree with its inference and legal application.

Let's first look at the provisions of the Internet Special Article (Article 12 of the Anti-Unfair Competition Law (2019 Amendment)): 

Operators who use the Internet to engage in production and business activities shall abide by the provisions of this Law.

Operators shall not use technical means to hinder or destroy the normal operation of network products or services legally provided by other operators by affecting users' choices or other means:

（(1) Without the consent of other operators, inserting links into the network products or services legally provided by them to force target jump;

（2) Misleading, deceiving or forcing users to modify, close or unload network products or services legally provided by other operators;

（3) Malicious implementation of incompatibility with network products or services legally provided by other operators;

（(4) Other acts that hinder or undermine the normal operation of network products or services legally provided by other operators.

Obviously, the Internet special regulation is to "use technical means" to implement "acts that hinder or destroy" the normal operation of other people's "network products or services", This clause further clarifies what is meant by "using technical means" to implement "acts that hinder or destroy the normal operation of" other people's "network products or services", including "inserting links, forcing target jumps", "misleading, deceiving, forcing users to modify, close, uninstall" and "malice" and "incompatible implementation". Judging from the above-mentioned listed behaviors, they all have the two characteristics of "using technical means" and "hindering or destroying the normal operation of" other people's "network products or services". Therefore, the above-mentioned two characteristics should also be applied to the behaviors applicable to Item (4) of Paragraph 2 of the Internet Special Article.

In the case of false brush volume, Chongqing No.5 Middle School also believes that "according to this regulation, The plaintiff needs to prove that the defendant 'used technical means' in his behavior. As a result, 'hinder or destroy' the plaintiff 'legally provides the normal operation of network products or services' ", Confirmation also said that "neither the original nor the defendant has proved by what 'technical means' the act of brushing was realized", However, it is inferred that "without the permission of the Internet operator, in order to deliberately avoid the supervision of the Internet operator, it is self-evident that the existing technical means in the Internet field such as insertion, carrying, linking or hijacking will be adopted to secretly carry out the brushing behavior". It also comes to the conclusion that "therefore, the behavior characteristics of the defendant's paid provision of false brush volume services conform to the provisions of Item (4) of Article 12 of the Anti-Unfair Competition Law of the People's Republic of China on 'other behaviors that hinder or undermine the normal operation of network products or services legally provided by other operators' and should be adjusted by the Anti-Unfair Competition Law".

Obviously, it is arbitrary to use "self-evident" to infer that the defendant "uses technical means". It is difficult to convince the defendant sincerely and cannot establish a logical path for the industry to refer to. The author agrees that the defendant must have used some "technical means" in order to achieve the purpose of false brush volume. The "technical means" must be hidden and imperceptible, not only by ordinary users, but also by Tencent. Therefore, Tencent, as the plaintiff, is more difficult to prove that the defendant "uses technical means". However, this does not exempt the plaintiff from the burden of proof. From another point of view, Tencent and other Internet operators have relatively mature technical measures to counter the amount of brush, otherwise the amount of false brush will become more rampant. Therefore, as a judicial institution, the technical capabilities of Internet operators such as Tencent should not be underestimated too much, nor should they be allowed to be "lazy".

Let's return to the second feature stipulated in the Internet special article, that is, "hindering or destroying" the normal operation of other people's "network products or services". In the case of false brush volume, the result of the defendant's behavior is to inflate the number of visits to specific articles and videos, making the results presented by the plaintiff's products to users place the specific articles and videos that inflated the number of visits at the top of the list of articles and videos, or give priority to recommending these articles and videos. This will inevitably lead to the plaintiff's inability to make a correct decision. Even increasing the plaintiff's operating costs, However, it will not lead to the results of "hindering or destroying" the normal operation of the network products or services legally provided by the plaintiff, such as forced jump, shutdown and uninstallation. In other words, after the defendant falsely brushes, the plaintiff's products can still operate normally, but the results presented are divorced from the real browsing situation of the user, thus producing the effect of misleading the user.

As stated in the judgment in the case of False Brush Volume, "The plaintiff needs to prove that the defendant 'used technical means' in his behavior, As a result, the plaintiff "hinders or damages the normal operation of the network products or services legally provided by the plaintiff", while the plaintiff has neither proved that the defendant "uses technical means" in his behavior, nor has the plaintiff's products been "hindered or damaged" due to the defendant's behavior. Obviously, it is far-fetched for the judgment to apply Item (4) of Paragraph 2 of the Internet Special Article.

So, how should the law be applied in this case?

In this case, the operator who entrusted the defendant to carry out false brush volume, Through false brush volume, the articles and videos published by the company are at the top of the list of articles and videos in the plaintiff's products, or the company obtains the priority recommendation of the plaintiff's products, thus attracting the attention of users in an improper way and even defrauding users of clicks, thus obtaining a competitive advantage. Its essence is false propaganda. As stated in the judgement in the False Brush Volume case, "Data such as the number of views and visits to an Internet product or service, ...... From the perspective of the audience, It is also the propaganda behavior of Internet operators on their products or services, However, this kind of publicity is a kind of passive publicity... Providing false brush volume services can easily mislead users and consumers to make wrong choices about the plaintiff's products or services... Ignoring the real wishes and trust of end users and consumers, Trapping users and consumers of Internet products or services, as well as the audience of Internet information, in a situation where they are hoodwinked and deceived, is a serious damage to the legitimate rights and interests of users and consumers... False brush volume infringes consumers' right to know and right to choose. "The defendant's false brush volume behavior is to help its customers carry out false propaganda.

The second paragraph of Article 8 of the Anti-Unfair Competition Law (2019 Amendment) stipulates that "operators shall not help other operators to carry out false or misleading commercial propaganda by organizing false transactions, etc." The focus of this clause is to help others to carry out false or misleading commercial publicity. However, the way used by the operator may be to organize false transactions or other ways, because this clause uses the expression of "... etc." without any clear restriction or requirement of "using technical means", as long as the purpose of its behavior is to help others to carry out false or misleading commercial publicity. In this case, the defendant helped his customers to attract users' attention in an improper way and even defrauded users of clicks by means of false brush volume, thus obtaining a competitive advantage, which fully conforms to the characteristics of helping false propaganda stipulated in the second paragraph of Article 8 of the Anti-Unfair Competition Law (2019 Amendment).

Therefore, the author believes that the provisions of the second paragraph of Article 8 of the Anti-Unfair Competition Law (2019 Amendment), rather than the provisions of the second paragraph (4) of the Internet Special Article, should apply to helping others to make false brushes in this case. Some commentators believe that the two clauses overlap in some aspects, which is actually a misunderstanding of the characteristics of the acts regulated by the two clauses.