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Website operators can prohibit 'screen scraping' of unprotected data via terms and conditions, says EU court in Ryanair case

Out-Law News | 15 Jan 2015 | 5:07 pm | 4 min. read

Online aggregators that engage in 'screen scraping' face a threat to their business models following a ruling by the EU's highest court, an expert has said.

The Court of Justice of the EU (CJEU) ruled that website operators can set contractual restrictions that prohibit other businesses from 'scraping' information from their sites if they cannot otherwise rely on intellectual property rights giving them protection against unauthorised use of that data. Screen scraping involves the use of software to automatically collect information from websites and systems.

The judgment could have implications for price comparison websites and other aggregators that do not have commercial agreements in place with online businesses regarding the use of their information, intellectual property law specialist Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said.

"In essence the judgment means that companies will have a much greater ability to restrict who uses the information about their products and services that is posted online," Connor said.

The CJEU was ruling in a case involving airline operator Ryanair and a Dutch price comparisons business, PR Aviation.

PR Aviation used an automated system to extract flight information from Ryanair’s website, and then charged consumers for booking through its site. Ryanair claimed that PR Aviation had acted in breach of its website terms and conditions. To gain access to the flight information, PR Aviation had to agree to Ryanair's terms and conditions which prohibited the use of an automated system or software to extract data from the website for commercial purposes, unless Ryanair consented to the activity.

However, the CJEU had been asked to consider whether EU laws on databases could be applied to online information that is neither protected by database rights or copyright.

PR Aviation had argued that, should the Database Directive apply to such information, there were rules contained in the Directive that enabled it to make use of the flight information on Ryanair's website and that Ryanair could not prohibit it from doing so using contractual restrictions.

The CJEU ruled that the flight data on Ryanair's website did not qualify for either database rights or copyright protection, upholding previous findings of a Dutch court. However, it said that in those circumstances, the Database Directive could not be applied to the information. It ruled that the limited exceptions to the right of database creators to restrict third parties' use of their database set out under the Directive do not apply when databases are not protected by database rights or copyright.

As a result, PR Aviation could not rely on those provisions to defeat the contractual breach claims brought by Ryanair, it said.

"It is clear from the purpose and structure of [the Database Directive] that [rules contained within it], which establish mandatory rights for lawful users of databases, are not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that it does not prevent the adoption of contractual clauses concerning the conditions of use of such a database," the CJEU said in its judgment.

The CJEU said that the contractual restrictions that database owners can put in place in the absence of database rights or copyright applying to their information must conform to national laws.

Connor said the ruling means price comparison websites will need to be "very careful as to how they obtain the data they need to run their websites with screen scraping looking like quite a risky activity in which to engage".

"This case will impact the entire price comparison website market from finance to travel and beyond," he said. "Whether this will mean better deals for consumers is a moot point because of the commissions shared between the comparison websites and the service providers. The reality is it will probably be neutral for consumers in price terms but mean that they can only buy direct from certain providers rather than going via a comparison site."

"The judgment, however, does not answer the question of who can be considered a 'lawful user' of a database in the event that database rights or copyrights subsist in a database," Connor said.

EU law makers established the Database Directive as a way of encouraging the development of database-dependent digital systems by creating a 'sui generis' database right that can be applied to certain sets of data that cannot qualify for copyright protection. Copyright law alone cannot offer protection to database creators where the database contains facts, as only the expression of facts and not the facts themselves can be copyrighted.

Not every set of data can be protected by database rights, however. Only if database creators have invested sufficient time, money and skill into developing their database will those creations be protected by database rights. Those with database rights can generally "prevent extraction and/or re-utilization of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database", according to the Database Directive.

However, under the Directive there are limited exceptions to the right of database creators to restrict the use of their database by others.

According to Article 6 of the Directive, where databases are protected by copyright, database owners cannot prevent a lawful user of that database from making a copy of the database where it is necessary for the lawful user to do so to access the database contents. Similarly, in those circumstances lawful users are permitted to make "normal use of the contents" of copyright-protected databases without requiring permission from the rights holder.

Article 8 of the Database Directive also prevents database creators from preventing lawful users of a database from "extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever" where the database had been made publically available.

Lawful users of the database, however, are prohibited from using publically available databases in ways "which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database" or from causing "prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database".

If database creators use contract terms to prevent lawful users of databases from exercising their rights under Article 6 or 8 of the Directive then those contractual provisions are to be deemed "null and void", according to the Directive.