奇虎360诉腾讯QQ滥用市场支配地位案一审评析（五）
Fourthly, it is not sufficient that the competition in the Anti-virus software market in which Tencent QQ Doctor (Computer Manager) belongs. And there are only few Anti-virus software vendors such as Kaspersky, Qihoo 360, Rising, Norton, Kingsoft Antivirus and Jiangmin. Consumes have no choice but to accept the bundled products. Certainly, there are still disputes on if Tencent QQ meets above four conditions.
To identify whether Tencent QQ's bundling is legal, the key is to analyze the impact of tie-in sale on economic efficiency.
At present, in the practice of the Anti-monopoly Law, there is no explicit definition in judging whether the bundling of a product (service) falls within Tie-in sale. In view of the spirit of the Anti-monopoly Law, "bundling" at least shall not infringe freedom of choice of consumers.
Only finds the premise of Tencent QQ has a dominant position in the market, Tie-in sale of Tencent QQ will have possibility to set up
Given that there are still disputes on whether Tenecent QQ possesses a dominant position in the market, it is still discussible about whether its tie-in sale is established.
IV. Whether “Incompatibility of Product” of Tencent QQ is illegal.
A. Qihoo's view on “Incompatibility of Product “of Tencent QQ ("either-Or" for users) constitutes illegal
On November 3, 2010, Tencent QQ issued a Letter to the QQ users, expressly prevented its users from using Qihoo 360's software. Otherwise, QQ software services will be terminated and a large number of users were forced to delete related software of Qihoo 360. Furthermore, Tencent prevent users installed 360 browser users from accessing QQ space by technical means. On November 20, 2010, the Ministry of Industry and Information Technology condemned and stopped the antecedent behavoirs of Tencent QQ
B. Tencent QQ, denied “incompatibility of product” ("either-Or" for users) was illegal.
Qihoo 360 commercially defame and maliciously destructing and tampering functions of Tencent QQ software by using 360 Privacy protector, 360 QQ bodyguard and kinds of software. In order to maintain lawful rights and interests of own, Tencent QQ has been forced to take measure of “Incompatibility of Product” to prevent and eliminate Qihoo 360 product from destructing products of Tencent QQ as well as reputation. It is a kind of legitimate remedy by self.
C. Judgment of GDHC on whether “incompatibility of product” of Tencent ("either-Or") is illegal.
GDHC judges that it is not illegal of “incompatibility of product” of Tencent" ("either-Or") However, it is out of limitation and lack of validity of forcing user to “either-Or”.
Tencent QQ defenses that the reason of “incompatibility of product” of QQ software with Qihoo 360 antivirus software is originated from infringement of Qihoo 360. It is also legitimate remedy by self. However, according to regulation of “General principles of the civil law", "Tort liability law" in china, self-defense and emergency hedge are not more than the limits of necessity.
As civil judgment of No.12237 2011) Second China Zhong Zi of Beijing Second Intermediate People's Court, Qihoo360 took Unfair competition on Tencent QQ. As a result, the legitimate rights and interests of Tencent QQ at that time were really in danger. But even if Tencent QQ needs to take self-defense, the target should be Qihoo 360, not getting users involved.
At the same time, Tencent QQ has rights to apply to the courts for temporary restraining order while their legitimate rights and interests may be infringed in emergency, However, Tencent QQ did not exercise their litigation rights in accordance with the law to stop the illegal violation, but take "either-Or for users" by side to intense the "3 Q war " to users. In addition, no matter Qihoo 360 forced users to use QQ bodyguard, whether hijacked the QQ security module and led to a QQ lost related functionality, Tencent QQ has no right to force the users to remove 360 softwares.
Right scope of Tencent QQ is limited to risk warning. But whether to remove Qihoo 360 software is the inherent right of the users, Tencent QQ could not make choice instead of users.
D. the Author’s view on whether “incompatibility of product”of Tencent is illegal.
Neither the Author agrees with Qihoo
Firstly, Software compatibility and Rights of consumer are entirely different issues, which could not be mixed up. Tencent QQ's incompatibility with Qihoo 360 is the mutual capacitance between competitors, which is not illegal. However, refererrng to Tencent QQ force consumers to choose “either-or ", is related with Protection of consumer rights .If putting “incompatibility of product” to “either-or ", it may be suspicious to put validity of “incompatibility of product” to " either-or ".
However, if a vendor holding a dominant position in market refuses to provide compatibility, it may impel the alliance of its competitors to provide interconnection and compatibility among them. There are a lot of such cases. Although GDHC does not uphold the opinion that Tencent QQ's"either-or" is a kind of self-relief, Qihoo 360 still fails to sufficiently prove that the infringement of "either-or" action of Tencent QQ toward Qihoo.
Secondly, the aim of “either-or” by Tencent QQ is exclusive dealing. The aim of “either-or” by Tencent QQ does not refuse to deal with users, but on compelling users to deal with Tenctent instead of Qihoo 360. And this in essence is a behavior of exclusive dealing. For example, OS2 operating systems previously developed by Apple are preferable than Windows operating systems of Microsoft. But Microsoft provided free pre-installation of Windows operating systems to some large OEM. By such covert exclusive dealing agreement, Windows' users grew rapidly and finally won out in the competition.
Thirdly, The behavior of “either-or"of Tencent QQ's is suspected to prejudice the right of fair trade as well as self-choice of the consumers. According to Articles 9 and 10 of “the Consumer Protection Law ”, consumers are entitled to choose commodity or service freely and own right of fair trade. Tencent QQ compels users to take "either-or”, surfacely offering an option to users, without preventing consumers from using products of other IM vendor. Consumers can also remove. However, provided Tencent QQ presumed to possess a dominant position in market, users are very likely to choose Tencent QQ rather than Qihoo 360. The reason is that the users do not have much choice.
By using QQ long time, the users have built a social circle on and formed a friend chain on QQ. Suppose change to other IM products; they will pay a high cost in rebuilding the social circle, and also need to be familiar with the function, features of the new products. Unless other IM products have obvious advantages in technology and function, users will not easily give QQ up. In contrast, there are more choices of anti-virus software; so many users have to remove Qihoo 360's anti-virus software. In fact removal will increase the burden on consumers, especially to the many middle-aged consumers.
No matter whether Qihoo 360 did any infringement upon the rights of Tencent QQ, Tencent QQ has no right to force users to take "either-or" option.
Tencent QQ may offer "kind reminder", also have the right to plead to the court for interim measures. But it is user's right to decide whether to remove Qihoo 360 software or not. Tencent QQ has no right to make choice for users. Moreover, free usage is not a sufficient reason for exemption of Tencent QQ's liability. Whatever kind of self-relief, such as"justifiable defense" taken by Tencent QQ, it shall not damage the rights and interests of consumers. There is no any reason for users to become the victim of the dispute between Tencent QQ and Qihoo 360. The author believes that the"either-or" option of Tencent QQ has been suspected to prejudice the right of fair trade as well as self-choice of the consumers. However, due to the case is filed by Qihoo 360 instead of consumers, GDHC does not uphold the allegation that Tencent QQ's" product incompatibility" (“either-or" behavior) constitutes the abuse of dominant position in market.
V. Analysis on Litigation Strategies of Both Parties
A. Analysis on the Strategy of Qihoo 360
Qihoo 360 hastily took Tencent QQ's abuse of dominant position market and Anti-competition in the litigation as stress, which may not be a proper strategic arrangement. Suppose the suit is filed by consumers (class action), whatever the result might be, the Court also needs to identify the relevant market and confirm whether Tencent QQ has taken a dominant position in market as well as whether it abuses the position. At least, this could be a stone thrown to clear the road for the next move. For instance, the strategies and tactics were adopted by"Shenzhen Donjin" in the case of Intel Corporation suing Shenzhen Donjin for the infringement on the copyright of “Header Files” phonetic software.
B. Analysis on the Strategy of Tencent QQ
The strategy of Tencent QQ focuses on denying Dominant Position in market, the crucial premise. Although Tencent QQ is in a negative position in respect of the issue of whether "either-or" option infringes self-choice of the consumers, it takes the opportunity that the case is filed by Qihoo 360 directly instead of consumers (class action).
VI. Analysis on the Evidence of Both Parties
A. Analysis on the Evidence of Qihoo 360
Firstly, in respect to the critical evidence on the definition of the relevant market, Qihoo 360 fails to provide comprehensive, accurate and conclusive data. And the evidence does not meet the criterion of probability. Moreover, it is rare to see Qihoo 360 filed applications with the relevant government authorities for their acquired evidence in accordance with the Regulations on the Disclosure of Government Information, especially acquired by the Anti-monopoly enforcement authorities. Only from statistics of documents in the first-instance, without comparing the evidence quality, Qihoo 360 quotes about 20 pieces of evidence, among which 15 notarized, two are research and analysis reports. The total number of evidence is only one piece more than that of Tencent QQ.
Secondly, after accomplishing the burden of presenting the above prima facie evidence; Qihoo 360 may also apply with the Court for investigating and collecting evidence provided that it is really difficult to provide evidence with sound reason. However, the Author did not see any application filed by Qihoo 360 to apply with GDHC on any evidence investigation and collection.
Thirdly, Article 8 of the “Provisions on Certain Issues Concerning the Application of Law in the Hearing of Cases Involving Civil Disputes Resulting from Monopoly Behaviors promulgated ”by the Supreme People's Court stipulates, Where an accused monopoly behavior falls within the abuse of dominant position in market as stated in Paragraph 1 of Article 17 of the Anti-monopoly Law, the plaintiff shall bear the burden of proof for the defendant's dominant position in a relevant market and abuse of dominant position market." Article 10 stipulated, the plaintiff may take the information publicly released by the defendant as the evidence showing that the defendant has dominant position in market." As view of the Author, it may be deemed as aforesaid prima facie evidence of the information disclosed by listed companies, facts admitted by the defendant, and any market research, economic analysis, monographic study as well as statistical result independently conducted by an eligible third-party institution. However, due to lack of sufficient critical evidence provided by Qihoo 360, it leads to negative consequence for insufficient evidence
Fourthly, Qihoo 360 invited David, a British scholar, also a former official of the UK Office of Fair Trading and currently a special consultant for a European professional research organization RBB, and Yu Yan, a RBB employee as expert witnesses. They cited iResearch's Report on the Development of the Instant Message Industry in China, CNNIC's (the China Internet Network Information Center) 2009 Report on the Instant Message Service Users in China, and the 28th Statistical Report on Internet Development in China, etc. which all are important evidence. However, some reports are not comprehensive, while the indexes and data cited are not completely consistent with the market competition indexes and data in the context of the Anti-monopoly Law. In addition, there is no any assessment and analysis report on the competition of the IM market made by an authoritative professional institutions or experts.
B. Analysis on the Evidence of Tencent QQ
Firstly, Compared with Qihoo 360, as the defendant, Tencent QQ bears lighter burden of proof. Tencent QQ enjoyed its right granted by the principle of "burden of proof borne by claimant” and the provisions of Item 1 of Article 8 of the “Provisions on Certain Issues Concerning the Application of Law in the Hearing of Cases Involving Civil Disputes Resulting from Monopoly Behaviors”. However, Item 2 of Article 8 thereof stipulated:” Where the defendant makes an allegation on the ground that the behavior is legitimate, the defendant shall bear the burden of proof." Tencent QQ presented the evidence to prove the legitimacy of its behavior, and there was no big mistake in the approach of evidence presentation. According to statistics of documents listed in the first-instance judgment without comparing evidence quality, Tencent QQ presents around 19 pieces of evidence, among which there are 18 pieces of notarized evidence and 1 economic analysis statement. The total number is only one piece less than that of Qihoo 360.
Secondly, Tencent QQ invited Jiang Qiping, General Secretary of the Centre for Information Study of the Chinese Academy of Social Sciences, and Wu Tao, associate law professor of the Central University of Finance and Economics, as assistant expert witnesses. However, when they testified, they seemed to think over their published opinions to avoid any passive position.
C. Expert witness
In the provisions of article 13 of China's supreme people's court “On the trial of civil dispute cases are arising because of monopoly behavior in the application of law”, the parties may apply to the people's court for entrusting a professional institution or professional staff to make market research or economic analysis for specialty. Upon the approval of the people's court, the parties can be negotiated to confirm professional institutions or professional. Provided failed, it is by designated by the Court ". However, in this case, it is unknown that whether the parties do not apply to GDHC or GDHC failed to take the considerations. As the Author’s opinion, Given the complexity and professionalism lies in the First major antitrust case in Guangdong province, both sides hired expert witness, and issue a report on economic analysis of the major institution. It would be more fruitful, in case GDHC can appoint neutral professional institutions and expert witnesses to make precise identification further for assisting the Court to judge this case,
VII. Estimation of trial result of The Chinese court System as well as the People's Court of second Instance
A. Settlement of Claim of China’s court system and the Supreme People's Court
The Chinese court system is the "four court system whereby the second instance is final". With the first instance of the case is processed in GDHC, it will appeal to the supreme people's court for second instance. Second instance in the supreme people's court of is the final judgment of the case. Generally, there are three types of settlement of claim in The supreme people's court. The first, the mediation agreement was concluded; The second，judgment of case, which is divided into three possibilities: firstly, to reject the appeal and it is upheld; secondly, modified in accordance with the law; thirdly, to cancel the original judgment for the retrial; The third, since Tencent QQ did not counterclaim with Qihoo 360, Qihoo 360 appeals to the supreme people's court for withdrawing, thus the sentence of GDHC comes into force.
B. Estimation of trial result of Second Instance
Provided that Qihoo 360 comes up with new conclusive evidence in second instance to sufficiently prove Tencent QQ possessing dominant position in Instant Message market in China, it also has possibility of the Supreme Court judges Tencent QQ possessing a dominant position. However, even assuming that Tencent QQ has a dominant position, it does not mean that Tencent QQ constitute the behavior of abuse of dominant position in market. It is uncertain that whether Tencent QQ constitutes Tie-in sale, or harm the legitimate right and interest of Qihoo 360. If under the mediation of the supreme people's court, the two sides made a agreement, it perhaps is the most judicious way for both sides.
VIII. Conclusion
The case of Qihoo 360 suing Tencent QQ, is one of the typical Anti-monopoly cases in the Internet sector in
