Summary

The traffic transmission behavior implemented by the digital economy platform can enhance the market power of the platform, and its scope of action is not limited by time and region. The enhancement of the market power of the platform will undoubtedly cause people’s concerns about monopoly risk. Preventing and hindering monopoly behavior is the primary legislative purpose of the Anti-Monopoly Law under the logic of word order, so it is necessary for the traffic transmission behavior to be examined by the Anti-Monopoly Law.

There are two paths to regulate the traffic conduction behavior of platforms. The first is to take it as a regulation of monopolistic behavior. However, the traffic transmission service agreement cannot be considered as a “monopoly agreement”. If it is implemented in conjunction with the traffic monopoly behavior, it may aggravate the anti-competition effect of “traffic monopoly”. For example, Tencent vigorously promotes its own “video account” function while banning TikTok, effectively seizing the short video market. However, it is difficult to achieve the effect of excluding and restricting competition as required by the monopoly agreement. Moreover, the traffic transmission behavior does not conform to the “abuse of dominant market position” behavior pattern in the anti-monopoly Law. The second alternative is to take it as a factor to determine whether the platform has a “dominant market position”. To determine that an operator of an Internet platform has a dominant market position, factors such as the platform’s business model, network effects, the operator’s ability to master and process relevant data, and the operator’s power in related markets should be taken into account. Traffic conduction behavior reflects the platform’s business model to a large extent, and can enhance network effects, provide operators with continuous data flow, and enhance operators’ power in associated markets through leverage effect. Therefore, when determining the dominant market position of a platform, it is necessary to consider the implementation of its traffic conduction behavior.

All in all, the value of traffic conduction cannot be underestimated. It is necessary to regulate it and guide the realization of traffic value correctly. When regulating traffic conduction behavior, attention should be paid to avoid causing monopoly risk and keep the Internet open and sharable. When judging whether a platform enterprise has a dominant position in the market, its ability to conduct traffic conduction, whether the traffic conduction behavior exists and the effect of the behavior should be taken into consideration.

Translated by: Liu Yuwei