Ensure your website terms & conditions protect you from screen-scrapers

What is screen-scraping?

Screen-scraping is in effect the automated gathering of information from a website. This information may then be used for third party price-comparison websites or to sell the product/service on another website.

Ryanair v PR Aviation BV, Case C-30/14

The case of Ryanair v PR Aviation BV was decided by the European Court of Justice on 15 January 2015. It provided that owners of publically available databases which do not fall under the protection of the Databases Directive (Directive 96/9/EC) are free to restrict the use of the data on their website through contractual terms.

To establish whether a database falls under the Directive the court held that “no criterion other than that of originality is effective for the purposes of protection by copyright”. One should look at whether the data constitutes the author’s own intellectual creation “by reason of the selection or arrangement of their contents” (copyright) or if there has been “qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents” (sui generis).

Databases which fall within the Directive

The Directive provides some protection to website owners.  Article 6 provides that the performance by the lawful user of a database must be “necessary for the purposes of access to the contents of the databases and normal use”.  Article 8 provides that a lawful user “may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database”.

If the author of a database, which is protected by the Directive, so wishes he may authorise the use of the database and regulate that use by an agreement which sets out, in compliance with the Directive, the purpose and way of using the database. If you feel that your website falls within copyright or sui generis you may consider creating such an agreement in order to regulate the manner in which it is used.

Databases which fall outside the Directive

A website owner, of a website that does not fall within the Directive, should put in place robust Terms and Conditions, such as those imposed by Ryanair, to protect itself against screen scraping. It is important to ensure that any such Terms and Conditions are enforceable by requiring the user of the website to click on an “accept” icon before being permitted to move through the site or the site should have a prominent notice on the homepage deeming each user to be bound by its Terms and Conditions. A website owner should also be alert to the provisions of the Electronic Commerce Directive which sets out certain information which must be provided to users of their website.

The case law on the Directive has led to an interesting conclusion whereby, it would appear, the author of a database which does not fall within the Directive may have more protection that one which does fall within the Directive.  This is because the former will not be subject the terms of the Directive and is entitled to impose such terms and conditions as it pleases to protect their data from, for example, screen-scraping.

Jurisdiction

It is also important to note the decision of Pez Hejduk v EnergieAgentur, NRW GmbH, Cast C441-13. This case determined that a case which is taken by/against a website owner may be taken in any court of a Member State where a website is accessible.

Implications

A website owner should review their Terms and Conditions to ensure they provide protection against screen scraping. A screen-scraper will, in turn, need to check the Terms and Conditions of the websites which they are accessing to check if there is such provision.

Reddy Charlton can assist website owners in reviewing and amending Terms and Conditions to ensure they are in compliance with EU Regulations.

If you have any queries in relation to the above topic, please contact Elaine McGrath at +353-1-661 9500 or emcgrath@reddycharlton.ie