关键词: 数据抓取, 不正当竞争, 个人信息, 可携带权

Abstract: Due to the uncertainty of data ownership, the consent rule under the framework of private law autonomy is not sufficient to adjudicate the legitimacy of data grasping behavior. A feasible idea is to take personal information data as an entry point and combine it with the right to portability system to adjust the conflicts of interests among the major subjects. Introducing the idea of the right to portability into the adjudication of unfair competition disputes can realize the integration of the norms of the anti-unfair competition law in terms of legal interpretation, and jointly safeguard the rights and interests of consumers and fair competition. Based on this, for non-personal information data, the consent of the user alone cannot have the effect of blocking the illegality of data grasping; as for the personal information data for which the user enjoys the right to portability in accordance with the law, the user can authorize the third party to access the data by means of consent under the premise of satisfying the conditions for exercising the right, thus blocking the illegality of the third party’s act. In applying the idea of portability, the court should still pay attention to whether the user’s consent has been obtained in an improper manner, such as through deception, misinformation or coercion, to ensure its validity and voluntariness, and at the same time weigh the consequences of the transfer of the personal information data in question, so as to avoid adverse effects on the rights and freedoms of others.

Key words: data grasping, unfair competition, personal information, portabilityright