플랫폼의 인위적 검색순위 알고리즘 조정과 위계에 의한 고객유인 - 쿠팡 사건을 중심으로

This study analyses the possibility of establishing attracting customers with fraud under the Fair Trade Act by referring to relevant KFTC decisions, precedents, and overseas cases regarding the case in which Coupang artificially adjusted its search ranking algorithm to place its Private Brand products at the top of search results. The Coupang case is not the first time KFTC has sanctioned online platforms for adjusting their search ranking algorithms artificially. In 2021, the KFTC also sanctioned Naver Shopping and Naver Video for adjusting search ranking algorithms artificially by applying the Fair Trade Act. The main reasons why the Coupang case establishes attracting customers with fraud are as follows. First, it can establish the existence of fraud or deception. In light of the relevant court rulings, Coupang was obligated to disclose the main determinants of its search algorithm or to design its search algorithm for its original purpose and use, and Coupang violated these obligations, so it is judged that there is a fraud or deception. In offline stores, consumers can freely look for and compare products, whereas online, they are constrained by the limited space of a screen, and therefore, search rankings and product reviews provided by platforms play a more important role in the selection of products when compared to offline stores. Secondly, it can establish a likelihood of misleading and prominence. Under information asymmetry, consumers are bound to perceive that the products placed at the top of the search rankings are exposed by sales performance, user preferences, product information fidelity, and search accuracy, as indicated by Coupang, and therefore Coupang's conduct creates a likelihood of misleading consumers. Furthermore, as the court held, the fact that Coupang artificially adjusted the product to appear at the top of the search rankings is sufficient to satisfy the element of prominence. Lastly, it can establish the existence of an impairment to fair trade. The issue of Coupang's use of unfair means of competition is closely related to Coupang's ‘dual role’ as both an operator and a seller of online shopping malls. Similar to the Coupang case, the Naver Shopping case (2021) and Naver Video case (2021) in Korea, the Google case (2017) and Amazon case (2022) in the EU, and the Amazon case (2023) in the US have also determined that a business operator that is both an operator and a seller of an online platform uses its dual role to restrict competition or use unfair means of competition with competitors or sellers on the platform, which is a violation of competition law. The Coupang case is significant in that the KFTC confirmed the fairness obligations of online platforms. Unlike a simple online shopping mall operated directly by a single seller, consumers generally expect neutrality and fairness in search for shopping malls that function as a comparative search platform for products from various merchants. This is especially true in the case of Coupang, which, in its dual role as a platform operator and seller, simultaneously exposes and arranges its own products and those of its competitors.