The platform private power behind big data discriminatory pricing and its legalregulation
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D922.294;D922.16

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    Abstract:

    The emergence of private power in the civil field can be traced back to market monopoly at the earliest, but the emergence of platform as a business structure and organizational model has unexpectedly and rapidly expanded the derivative space of private power. By imitating the state to provide market, communication and other infrastructure or public services, internet business platforms in this process in a self-empowering way master a kind of management of the market within the platform. With the increasing maturity of big data and cloud computing technology, this power has also gained the connotation of resource allocation and rule-making due to the market-government attribute of the internet business platform. Platform operators can not only rely on the real-time monitoring and analysis of big data to overcome the blindness of production, but also obtain the optimal solution of market investment within the platform. It can also use information technology to achieve low-cost and efficient governance of the market within the platform. However, it cannot be ignored that the form in which private entities provide public services and obtain management rights inevitably makes such rights have significant private attributes, and the progress of internet technology will also make it convenient for platform private power to infringe users’ rights and interests: After directly or secretly collecting a large amount of user data, platform operators use big data and cloud computing technology to complete the portrait of individual users, and finally use the algorithm model to achieve differentiated pricing for different consumers, so as to achieve the purpose of eating the surplus of consumers. The frequent occurrence of big data discriminatory pricing, while increasing the risk of consumer privacy disclosure, deprives consumers of surplus, reduces consumers’ trust in the network trading market, also goes against the development concept of sharing, and ultimately hinders the development of China’s digital economy. From the perspective of existing regulatory methods, the Anti-Monopoly Law is not only unable to curb big data discriminatory pricing of small and medium-sized platforms, but also difficult to effectively deter big data discriminatory pricing of large platforms through the abuse of market dominance system. However, in the face of platforms that possess a large amount of data and are far more rational than individuals, the Consumer Rights Protection Law cannot balance the strength gap between consumers and platform operators within the platform. At the same time, concepts such as price discrimination and price fraud cannot be used to explain big data discriminatory pricing. Therefore, it is necessary to define the scope of data collection of internet commercial platforms by adopting white list system from the governance logic of restraining private power, and empower the users and operators within the platform to oppose the exercise of private power of the platform, strengthen industry self-discipline and introduce third-party supervision, so as to ensure the stable and healthy development of the digital economy of China while curbing the exercise of private power of the platform.

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何昊洋.大数据杀熟背后的平台私权力及其法律矫正[J].重庆大学学报社会科学版,2023,29(6):220~232

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  • Received:
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  • Online: January 17,2024
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