The ＂Provisions on Administrative Punishment for Price Violations＂ is welcome to be revised, which is of great significance to curb the killing of big data.

　　On July 2, the State Administration of Market Supervision promulgated the Provisions on Administrative Punishment for Price Violations (Revised Draft for Comment) (hereinafter referred to as the "Provisions") for public comments.

　　The Paper reporter noted that the Provisions on Administrative Punishment for Price Violations was approved by the State Council on July 10th, 1999, and was revised three times in 2006, 2008 and 2010. Compared with the previous version, the highlight of this revised draft for comments is the addition of "price violations in new formats".

　　It is mentioned in this clause that in any of the following circumstances, a warning shall be given and the total sales of the previous year may be fined 1‰ The above 5 & permit; The following fines, illegal income, confiscate the illegal income; If the circumstances are serious, it shall be ordered to suspend business for rectification or revoke its business license.

　　These situations include: e-commerce platform operators use big data analysis, algorithms and other technical means to set different prices for the same goods or services under the same trading conditions based on the preferences and trading habits of consumers or other operators and factors other than cost or legitimate marketing strategies. Commonly known as "big data killing."

　　In addition, the price violations specified in this clause also include the dumping of e-commerce platform operators who do not have a dominant market position at a price lower than the cost through subsidies and other forms in order to crowd out competitors or monopolize the market, disrupting the normal production and operation order and harming the national interests or the legitimate rights and interests of other operators.

　　Chen Wenming, a lawyer of Zhejiang Xiaode Law Firm, told The Paper that the Regulations on Administrative Penalties for Price Violations revised by the State Administration of Markets is to meet the needs of the economic development of the times, especially the economic development of Internet e-commerce.

　　Multi-level laws and regulations regulate the killing of big data, with a total sales volume of 5‰ Fines and suspension of business for rectification have great deterrent power.

　　At present, many laws and regulations have been promulgated to restrict the killing of big data, including the E-commerce Law, the Anti-monopoly Law and the Price Law. Different laws differ in punishment intensity, regulation scope and treatment cycle.

　　Compared with the fine imposed by the E-Commerce Law, the Provisions on Administrative Penalties for Price Violations is relatively more deterrent.

　　The first paragraph of Article 18 of the E-Commerce Law, which was officially implemented in January 2019, stipulates: "If an e-commerce operator provides search results of goods or services to consumers according to their hobbies, consumption habits and other characteristics, it should also provide the consumers with options that are not specific to their personal characteristics, and respect and equally protect the legitimate rights and interests of consumers."

　　The "Electronic Commerce Law" imposes a maximum penalty of 500,000 yuan for violating this clause. However, the punishment standard for killing illegal big data in the Draft of Provisions is completely different, and it is proposed that the total sales of the previous year should be 1‰ The above 5 & permit; The following fine punishment measures, if the circumstances are serious, may even be ordered to suspend business for rectification, or revoke the business license.

　　Liang Zheng, a professor at the School of Public Administration of Tsinghua University and secretary-general of the Academic Committee of the Tsinghua University Research Center for Science and Technology Development and Governance, told the The Paper that the usual punishment for price violations is to confiscate the illegal income or impose a fine several times the illegal income, and impose a 1 & permit; The above 5 & permit; The following fines are severe, with a strong punitive nature and a greater deterrent to enterprises.

　　However, Liang Zheng believes that this penalty clause needs to be further clarified. For example, whether the total sales in the previous year refers to the previous year when the illegal act was implemented or the previous year when the regulatory agency initiated the investigation; Total sales refers to the total sales of the enterprise or the sales of the business or products involved in the illegal act.

　　Liu Xu, a special researcher of Tsinghua University National Institute of Strategic Studies, expressed support for "suspending business for rectification and revoking marketing license". "For some platform companies, it is willing to spend hundreds of millions and billions to burn money. He doesn’t care about the millions of fines or tens of millions of fines, or even hundreds of millions of fines, because he can refinance." Liu Xu said, "So for such companies, the best way is to stop, or suspend business for rectification, or let it completely withdraw from this market."

　　Compared with the lengthy enforcement cycle of the Anti-Monopoly Law, the Provisions on Administrative Punishment for Price Violations is more convenient in law enforcement.

　　The clause in the Anti-Monopoly Law related to big data killing is Article 17, paragraph 6, which stipulates that "without justifiable reasons, different treatment is given to counterparties with the same conditions on trading conditions such as trading price", which constitutes an abuse of market dominance and should be prohibited. "The subject to which this clause refers is" an operator with a dominant market position ". This time, the "Regulations" will expand the main body to e-commerce platform operators.

　　In addition to the expansion of the scope of application of the Regulations, Liu Xu also believes that the Anti-Monopoly Law has a long enforcement period and is difficult to prove. "From the perspective of price enforcement, the current Regulations are relatively simple and should be more convenient to implement. This is a positive place."

　　It is difficult to prove that big data is cooked. What else needs to be done besides laws and regulations?

　　The dimension of laws and regulations has clarified the crackdown and punishment on big data killing, and the dimension of daily supervision is also making efforts to solve the problem of difficult evidence collection for big data killing.

　　Chen Wenming, a lawyer of Zhejiang Xiaode Law Firm, pointed out that the difficulty of big data supervision in the past was how to supervise algorithms. "The behavior of supervising big data killing is not simply to monitor the company, but to monitor the company’s algorithm. No Internet company will fully disclose its own algorithm, which is the biggest difficulty in supervising big data killing." He further explained that if you really want to supervise the killing behavior, you should supervise the algorithms of various enterprises and let them publish these algorithms, at least to the regulatory authorities, so that the regulatory authorities can have evidence to check. This is the first step for everyone to supervise these Internet companies.

　　Liang Zheng, a professor at the School of Public Administration of Tsinghua University and secretary-general of the Academic Committee of Tsinghua University Science and Technology Development and Governance Research Center, also believes that big data is hidden, it is difficult to obtain evidence, and it is difficult to investigate and deal with it.

　　Liang Zheng suggested that you can try the following regulatory tools:

　　First, play the role of whistleblower. Encourage employees in peer companies or enterprises to actively report big data killing behavior and provide clues and evidence materials for regulators.

　　Second, the use of big data monitoring technology to achieve smart supervision. Platform enterprises have the advantages of data, algorithm and technology, and there is an information gap between regulators and enterprises. Regulators can realize real-time monitoring through big data monitoring system.

　　Third, cooperation between government and enterprises to achieve coordinated supervision. If the traditional antagonistic relationship between regulators and enterprises continues, platform governance can only become a "cat and mouse" game, which cannot effectively solve the problem of killing big data. The cooperation and cooperation between regulators and enterprises should be strengthened, and enterprises should be encouraged to be self-compliant. Regulators can require enterprises to provide internal compliance explanations or price policies to monitor the effect of their self-compliance.

　　Some regions have made very valuable explorations. In March 2021, the "Zhejiang Fair Online" system, which was developed and built by Zhejiang Market Supervision Bureau, was launched for monopoly and improper behaviors in the platform economy.

　　According to reports, "Zhejiang Fair Online" relies on the national online trading monitoring platform, and its monitoring scope covers major online trading platforms such as Taobao, Tmall, JD.COM, Pinduoduo, Meituan and Suning.cn. It can dynamically monitor the qualifications of platform economic operators, trading rules, brand goods, sales prices and other information in real time, and illegally implement operator concentration.

　　The community group buying platform has been fined many times, and the Regulations have turned law enforcement experience into clear rules.

　　In addition to regulating the killing of big data, another highlight of the Regulations is that in the section of "Price violations in new formats", "the price violations specified under this clause also include the dumping of e-commerce platform operators who do not have a dominant market position at a price lower than the cost through subsidies and other forms, disrupting the normal production and operation order and harming the national interests or the legitimate rights and interests of other operators" is clearly illegal.

　　Since the beginning of this year, many community group buying platforms have been punished for allegedly dumping at low prices. In March, the General Administration of Market Supervision imposed administrative penalties on unfair price behaviors of five community group buying enterprises, among which illegal behaviors included "low-price dumping" behavior of selling goods below the purchase cost through huge subsidies. In May, the General Administration of Market Supervision imposed a fine of 1.5 million yuan on the 10th Club, and ordered the 10th Club platform in Jiangsu to suspend business for 3 days. After investigation, it was found that the 10th Club sold goods at a price lower than the purchase cost through huge subsidies.

　　Therefore, in the view of Liu Xu, a special researcher of Tsinghua University National Institute of Strategic Studies, the Regulations have turned the law enforcement experience in the past six months into clear rules to guide enterprises and new formats. "It shows a clear position — — The State Administration of Markets clearly wants to strengthen the supervision of the platform economy. "

　　Liu Xu believes that the successful experience of law enforcement of relevant departments in the first half of the year is to investigate and deal with price fraud and false propaganda in community group buying. This exposure draft will continue to strengthen the punishment for this type of behavior to a certain extent. "If you check it again, you will suspend business for rectification, and then the next step is to cancel your license. This will have a greater impact on platform enterprises.

　　(This article is from The Paper, please download the "The Paper" APP for more original information)