On March 6, 2023, the Sino-German Legal Cooperation Programme of the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH and the Third Civil Chamber for Intellectual Property of the Supreme People’s Court organized an online dialogue event on the topic of “Data Protection in Competition Law and Intellectual Property Law”, which was attended by Chinese and German judges and experts in the field of competition law and data protection.
The focus of the discussion was on the importance of protecting personal data and the misuse of data by companies to gain unfair competitive advantages or to exploit their dominant market position. The speakers stressed that data protection is important for fair competition and to ensure the protection of the personal data of each citizen.
Mr. Li Jian, Deputy Head, Third Civil Chamber of the Supreme People’s Court, emphasized in his welcoming remarks the growing importance of data in modern society and the accompanying legal development. The dialogue aimed to promote the exchange between Chinese and German judges and other experts in the field of digital economy and data protection, in order to improve the professionalization of internet jurisdiction in both countries. Subsequently, Dr. Marco Haase, programme director of the Legal Programme, welcomed the participants and highlighted the importance of protecting personal data and handling them properly. He explained that data is a crucial factor for the economy in the digital era, affecting competition and intellectual property law. On the one hand, China passed the Personal Information Protection Law in 2020, indicating that China has been further developing in the field of data protection legislation. On the other hand, the EU has gained valuable experience in implementing the General Data Protection Regulation (GDPR) for several years. In this regard, there is a good basis for exchange and mutual learning between both sides.
The first topic addressed the legal framework for data protection in the field of competition law. The speakers were Professor Zhang Chenying from Tsinghua University and Professor Dr. Ansgar Ohly from the Ludwig-Maximilians-University Munich. Professor Zhang Chenyin first defined the term data and various types of data categories and their characteristics. She argued that the data legal system should be based on determining control and behavioral rules related to data, and that data supervision should be carried out from the perspective of anti-monopoly laws. In her presentation, she presented various challenges in regulating monopolies in personal data and the abuse of a dominant position from the perspective of competition law. Finally, she called for the development of a comprehensive legal framework. Professor Dr. Ansgar Ohly discussed in his contribution the enforcement of the GDPR through competition law. The subsequent discussion focused on the broad application of the general clause of the law against unfair competition and its equivalents in China and how this was avoided by specific provisions in 2004. There were also questions about the Facebook ruling of the German Federal Court of Justice and how the distribution of data can prevent a dominant market position of a data processor.
After a break, the second part of the conference continued with court rulings on data protection in disputes over intellectual property. The speakers were Ms. Zhang Xiaomei, Vice President of the Intermediate People’s Court of Xiong’an and Professor Dr. Thomas Regenfus from the Higher Regional Court of Nuremberg and Professor at the Friedrich-Alexander University of Erlangen-Nuremberg. Ms. Zhang Xiaomei spoke about the strengthening of the digital economy in China through the application of regulations against unfair competition. In recent years, the courts have developed regulations for the digital economy to promote new technologies, protect consumer welfare, and improve the protection of intellectual property. The focus was on the appropriate application of data protection and data security laws, as well as determining the legal responsibility for new business models. Professor Dr. Regenfus’ presentation focused on the protection of trade secrets and data protection regarding intellectual property. In Germany, there is no regulatory agency with supervisory powers under the Anti-unfair Competition Law, which is exceptional. Instead, the market functions through the practice of competitors and associations issuing warnings to one another – through the so-called “invisible hand of the market”. A distinction was made between factual protection (protection against knowledge by third parties, especially competitors) and legal protection (disclosure of information, as this is necessary, but protected by the state through patents, trademarks, or copyrights). Subsequently, there were questions about the conflict of interest between consumers and companies in data collection and the balance between data protection and efficient use of data for innovation. It was explained that data protection should be preferred, since it is an individual right.
In conclusion, Mr. Li Jian raised three questions for the future regarding the inclusion of data protection in the protection of intellectual property, the determination of data rights, and the handling of unlawful competition behavior. He emphasized that the event has deepened mutual understanding and opened new perspectives for exchange and cooperation between the judiciary of China and Germany in the fields of data protection and the protection of intellectual property. Mr. Norbert Feige, legal advisor from the GIZ Sino German Legal Programme, explained how data has become an important economic asset used by companies to conduct business and drive innovation. However, he stressed that the interests of competitors and consumers must also be considered and that the courts must find a balanced approach between the different parties.