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Is There an Effective Legal Defence Against “Screenscraping”?

Is There an Effective Legal Defence Against “Screenscraping”?

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This article outlines the possibilities of a legal defence against “screenscraping” – a way of automated data extraction from web sites of third parties without their consent (or even against an express prohibition).

Screenscraping may be used to provide useful and sophisticated services with an added value (integrating otherwise fragmented information) and it is therefore widely used although this is not always apparent (such as for price monitoring / comparison, etc.).

On the other hand, it may also infringe the legitimate rights of the parties whose information is being used, in particular in the area of

(i) intellectual property (copyright) and database rights,

(ii) general terms and conditions of businesses, or web site use (certain web sites expressly prohibit scraping or copying their content and its further use),

(iii) laws regarding “computer hacking“ and

(iv) laws protecting fair competition. 

The question of the legality of screenscraping is at present the core of several legal disputes across the EU with somewhat unclear contours so far. Given its practical implications in many sectors, it is important for businesses directly carrying out screenscraping, as well as for those indirectly utilising the scraped data, and likewise for those businesses wishing to protect themselves against such practices.

Ryanair versus online travel agencies / Preliminary court protection against screenscraping

The legality of screenscraping and the right to prohibit its data from being scraped is at the core of the disputes between Ryanair and various online travel agencies, such as Kiwi.com, lastminute.com and other (“OTAs”), which are illustrative of the underlying issues.

Ryanair has been challenging the right of OTAs to use data scraped from its website to offer flight combinations and intermediate the sale of its air tickets. Ryanair expressly prohibits such use of its website as it prefers to sell its services directly or through authorised distributors, thus being able to generate additional profit on ancillary services (car hire, hotel booking, etc.).

In the context of this dispute, courts of various EU jurisdictions are required to consider the legality of this business activity and the possibility of a competitor to prevent it with a preliminary injunction.

The prevailing view of the courts so far has seemed to be that screenscraping was not prohibited per se by national or EU law (namely Italian, Irish, Swiss and German courts have issued complex decisions considering the main legal questions in detail). 

On the other hand, Ryanair has recently (May 2022) succeeded in the Paris Court of Appeal. In 2021, it succeeded in Czech courts, which have issued a preliminary injunction. However, it was subsequently overturned by the Czech Constitutional Court, mainly on the grounds of the fundamental right to ownership and business activity and the right to a fair trial.[1]

The decision of the Czech Constitutional Court recognised that the preliminary injunction would effectively put into jeopardy the entire business model on which the OTAs operate. Furthermore, it was issued without a hearing (in an inter partes proceedings) and it was without any detailed analysis of the legality of screenscraping, violating the essential procedural rights of a party.

In summary, while the disputes over the legality of screenscraping are likely to be complex and lengthy, for claimants, it will be worth seeking immediate preliminary protection against such behaviour on the grounds of one or more of the arguments outlined below.

On the other hand, such a preliminary injunction is likely to cause significant damage to the defendant (equal, at a minimum, to lost profit), thus carrying the risk for the claimant that it will later be obliged to compensate the damage, should the injunction be overturned or should the claim not be successful on merits.

Screenscraping x copyright and database protection

Firstly, it is possible to seek protection based on copyright / database protection laws, although in the EU also the importance of data mining activities, and of the “data-driven economy” is acknowledged. 

The main document relevant for data mining in the EU is Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (“DSM Directive”), which sets out a more detailed framework and guidance on this activity.

The DSM Directive harmonises the treatment of databases under copyright law and the sui generis right for the creators of databases which do not qualify for copyright. If the screenscraping is carried out within the limits of the DSM Directive, it should not infringe copyright or database protection, although the limits of such protection are not always entirely clear.

The limits of copyright and database protection were also the subject matter of preliminary question proceedings in front of the European Court of Justice (“ECJ”) in the context of the dispute between Ryanair and PR Aviation BV regarding the previous legal regime under Directive 96/9/EC on the legal protection of databases. Further insight may be drawn from the ECJ decision.[2]

In summary, contractual restrictions must not be imposed on the use of publicly available databases protected by copyright or database rights under the Directive. On the other hand, providers of databases that are not protected by copyright or database rights are free to impose contractual limitations on their use. 

Screenscraping x General Terms and Conditions  

Screenscraping is often prohibited by the general terms and conditions of businesses or the terms of use of their websites (which must be accepted prior to accessing these websites). Therefore, an explicit or implied consent and agreement with the terms and conditions is typically required. Breach of the terms and conditions is then regarded as a breach of contract.

This was also argued in the case of Ryanair, whose terms and conditions explicitly prohibit screenscraping and similar activities on its website. Ryanair alleges that it makes its prices and flight schedules available on the internet for comparison purposes only, while it prohibits other use of this data and any resale of its airline tickets.

This is a valid argument and many websites contain specific tools which communicate with the screenscraping software making it clear that such access and use of the data on the website is not authorised. Legal questions aside, businesses are of course implementing technical solutions preventing screenscraping and this seems to be the most effective way to protect a website.

From the context of the Ryanair v. OTAs disputes, it is apparent that the real contentious issue is the competition in the downstream market for ancillary services, where Ryanair and OTAs compete (and not the resale of Ryanair airline tickets as such). From this perspective, these disputes have an important competition law aspect which may impact their outcome.

Screenscraping x competition law and abuse of dominant position

Competition law arguments have been raised in the Ryanair versus OTAs disputes (both on the EU and/or national level). The OTAs argue that Ryanair is (by attempting to prevent screenscraping of its website) effectively abusing its dominant position. To the contrary, Ryanair asserts the right to determine its own distribution policy and set the terms and conditions for the use of its website.

Generally, an undertaking is in a dominant position if it is in a position of such economic strength which enables it to prevent effective competition on the relevant market, has the power to behave to an appreciable extent independently of its competitors and customers.

Typically, an undertaking is dominant if it holds significant market share (of 40 per cent or more) and has a significantly larger market share than its next largest rival. In each case, the key question is the delineation of a specific market (considering in particular the substitutability of the respective goods or services from the customer’s perspective).

Dominant undertakings must not abuse their position, in particular by imposing prices above market level or by engaging in various discriminatory or exclusionary practices.

Practices, such as boycotting or refusal of supplies, aimed at excluding competitors from the market are prohibited. Arguably, refusal to allow screenscraping with the aim of excluding a competitor from a certain market may amount to such prohibited behaviour, given that it may harm the downstream market (as is the Ryanair case).

Obviously, it is not always straightforward to determine whether a firm is in a dominant position and whether a certain practice is discriminatory or exclusionary rather than a legitimate business behaviour.

There are a number of important underlying questions – such as the right of each undertaking to freely determine and protect its own business model and policy, and to what extent is screenscraping in a particular case beneficial to customers (consumers) as it brings value added innovations and reduced cost by promoting a competitive environment?

Screenscraping x laws against „computer hacking“ 

Unauthorised access to or use of computer data may constitute a criminal offence in a number of jurisdictions if the “hacked” data is protected (by passwords or other appropriate security measures). This is often not the case and neither are these data typically protected as business secrets (as they are publicly available on the internet).

However, even if screenscraping is not a criminal offence (depending on the circumstances), it may nevertheless be an infraction (trespassing).

Notably, in the US eBay has obtained a preliminary injunction against the company Bidder’s Edge based on the argument that eBay’s web site constituted part of its private ownership which was intentionally trespassed by Bidder’s Edge. 

Conclusions

As outlined above, at present there are a number of court proceedings pending in front of the courts of various EU states (and across the world) which raise the question of the legality of screenscraping from different perspectives. With the expansion of the digital economy, the importance of clear and concise boundaries is ever more important and lacking.

It is thus advisable that businesses engaging or utilising screenscraping seek detailed legal advice regarding any potential risks. This is equally the case for businesses “on the other side” wishing to protect themselves against such activity.

[1] I. ÚS 1440/21
II.ÚS 1440/21 ze dne 23. 8. 2021

[2] C-30/14, 15 January 2015

By Tomas Dolezil, Partner, and Zuzana Valouskova, Associate, PONTES 

Czech Republic Knowledge Partner

PRK Partners, one of the leading Central European law firms, has been helping clients achieve their business objectives almost 30 years. Our team of lawyers, based in our Prague, Ostrava, and Bratislava offices, has a unique knowledge of Czech and Slovak law and of the business environment. Our lawyers studied at top law schools in the United States, United Kingdom, Switzerland and elsewhere. They also have experience working for leading international and domestic law firms in a number of jurisdictions. We speak your language, too. Our legal team is fluent in more than 15 languages, including all the key languages of the region.

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