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Renren v. Baidu — China's Second Antitrust Judgment 唐山人人诉百度垄断案  

2010-08-02 17:53:31|  分类: 新闻/旧闻 |  标签: |举报 |字号 订阅

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出处:http://blog.sina.com.cn/s/blog_67f0027c0100imjl.html
On December 18, 2009, the Beijing No. 1 Intermediate Court (hereinafter "the court") issued a ruling in a private lawsuit filed by Tangshan Renren Information Service Company (Renren) under China's Antimonopoly Law (AML) denying Renren's claims for failure to satisfy its burden of proof. In this case, Renren alleged(宣称) that Baidu abused its dominant market position by downgrading Renren in Baidu search results. This is the first Internet-related antimonopoly lawsuit decided under the AML, which took effect on August 1, 2008.

(2009年12月18号,北京第一中级法院(下称"法院") 公布了依中国反垄断法对唐山人人公司诉百度公司垄断纠纷案作出的裁决,因证据不足驳回原告诉讼请求。在这个案件中,人人称百度滥用其市场优势地位降低人人网在百度搜索结果中的位置。这是国内第一起依中国反垄断法裁决的与互联网相关的反垄断案件,中国反垄断法是在2008年8月1日生效的。)

This case provides certain insights regarding private actions filed under AML in China. This article first introduces this case, then discusses my observations, and finally presents my recommendations for companies seeking to comply with China's antitrust regime.

Background

Baidu, established on June 5, 2001, is a leading online search engine provider that directly compete with Google in China through its search engine http://www.baidu.com/. In addition to providing "unpaid" search services, Baidu provides paid services on the basis of "auction-based rankings" (i.e. increased levels of visibility of certain websites in Baidu’s search results for additional payments).

Renren, established on January 22, 2007, operates a medical information website www.qmyyw.com. In order to promote its website, Reren had subscribed to Baidu's paid listing service, under which Baidu charged websites fees for inclusion in its search engine index. Under the paid listing service, the size of the fee paid by the subscriber had a direct correlation to the ranking in which the subscribers' website was listed in response to a user search. Specifically, the more a subscriber paid, the higher the subscriber's ranking in search results for searches performed on www.baidu.com. At some point Renren reduced the amount of fee it paid Baidu to be included in the paid listing service.

Renren filed an action against Baidu Company (Baidu) in the Beijing No. 1 Intermediate Court on January 6, 2009. Renren claimed that Baidu had abused its dominant position in China's search engine market by blocking Renren's website www.qmyyw.com from search results of Baidu's organic listings(自然排名) in retaliation to Renren's reduction of payment to Baidu for the auction-based rankings. reducing its financial input into Baidu's paid listing service. Renren sought damages of RMB 1,106,000 and an injunction for the termination of Baidu's blocking.

In response to Renren's complaint, Baidu admitted that it had blocked Renren's website in the organic listing search results, but explained that its blocking measures had no relationship with Renren's reduction of its payment for the input-based rankings. Baidu further explained that the reason that it blocked Renren's website is that Renren had allegedly used a robot to automatically post junk posts on various online forums and websites and sent out spam messages (so-called "junk links") to boost its ranking in Baidu’s search results. Such "junk links" are explicitly prohibited by Baidu under its corporate policy (i.e. banning websites with a deliberately large number of "junk links" to promote the website's natural rankings artificially). In addition, Baidu denied that it held and/ or abused a dominant position in China’s search engine market. Moreover, it argued that the plaintiff(原告) did not provide sufficient evidence to prove that it held a dominant market position in the market.

After trial on the merits, the Court rendered its substantive decision in favor of Baidu on the following grounds:

(1) The evidence was insufficient to sustain the claim that Baidu was dominant.  The plaintiff had submitted only a few statements from various media regarding Baidu’s alleged market share, which did not include any details of the methods used for calculating the market share.  The court therefore found such sources of data did not provide a sufficiently scientific and objective analysis to prove a dominant position.

(2) Baidu's alleged blockage of TRISC's website was justified(有正当理由的).  The plaintiff had admitted that it had engaged in the practice of creating junk links, and the defendant(被告)'s policy of prohibiting junk links had been posted on its website and was applicable to all websites.  Baidu did not offer any proof that it had actually punished other junk-linkers, but the court accepted Baidu's assertion that this approach to punishing junk listings was designed to ensure the accuracy and integrity of the search results for the benefit of search engine users.  On this basis, the court decided that, even assuming Baidu to have a dominant market position, the alleged conduct did not constitute(构成) an abuse of dominance under Article 17, because there was a legitimate justification for Baidu's alleged conduct.

(3) The court also found that TRISC did not prove that its reduction of advertisement spending and Baidu's subsequent actions caused the decrease of visits to its website.

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