Startup specialist firm Beauchamps Solicitors join us to answer startup legal queries.
This months legal query is about data scraping:
When scraping data from a publically accessible website, is there any information which it may be illegal to take and publish to other business users?
We see a lot of companies developing tools that scrape LinkedIn but what if you scrape the search results from Google?
Maureen Daly, partner and head of IP & IT:
Just because information is provided on a publicly accessible website does not necessarily mean that it can be legally scraped. Scraping (otherwise known as web scraping screen scraping, web harvesting or data scraping) is a technique whereby large amounts of data are extracted from websites, without the knowledge or permission of the owner, using software that simulates human web surfing.
The advantages of scraping data include creating content at little to no cost and driving traffic to the scrapers website. However, there can be negative consequences for the website owner whose site is scraped, including system overload, loss of advertisement revenue, loss of control of the information content and devaluation of content (particularly if that content was from a premium service). Accordingly, many website owners prohibit data scraping.
Before businesses embark on any scraping activity, they should consider the following as they may find themselves embroiled in a legal dispute:
1. Website terms and conditions
Many companies such as Google, LinkedIn, and Ryanair expressly prohibit scraping within their website terms and conditions. Whether they can enforce such terms is still unclear but depending on circumstances, a claim for breach of contract is possible.
As scraping involves copying, it may lead to a claim for copyright infringement. Whether such a claim has any merits will depend on the particular circumstances because not all scraped data qualifies for copyright protection. Works which are copyright protected include original literary and artistic works such as computer programs, website graphics, and photographs.
3. Database rights
Database rights are distinct from copyright. It arises in a database with substantial investment in obtaining, verifying or presenting its contents. A database right is infringed when all or a substantial part of a database is extracted or re-utilised without the owners consent. The repeated extraction or re-utilisation of insubstantial parts of a database which conflicts with the normal use of the database may also infringe database rights. Infringement of database rights may also apply when scraping directories or listings from third party websites if the owner has incurred costs in developing and maintaining them.
If the scraper reproduces a website owners (registered or unregistered) trademarks without their consent, the website owner could take an action claiming trademark infringement and/or passing off. Passing off prohibits a third party from selling goods or carrying on business under a name, mark, description, or in any other way that is likely to mislead, deceive or confuse the public into believing that the merchandise or business is that belonging to the brand owner.
5. Data protection
Businesses looking to use automated scraping techniques to collect information about individuals should be aware that they risk breaching Irish data protection law if they collect “personal data” (that is, any information that identifies a living individual). The central issue is whether individuals have consented to their personal data being collected. Although data obtained from one website may in isolation not be personal data, when its aggregated from multiple websites, a business may inadvertently find itself in possession of personal data without the consent of the individual concerned. Use of such personal data will infringe data protection laws.
6. Criminal Damage
It is an offence to cause criminal damage to a computer (including damage to data) or to use a computer to access data without authorisation. Accordingly, data scraping could be a criminal offence as the website owner has not authorised access to the data.
To ensure there is no disruption to operations and that data continues to flow, businesses who carry out data scraping should consider where they source their data and identify whether such data is bound by contractual limitations or other restrictions. Failure to do so will mean that the data scraping is likely to be unlawful.
NB: While all reasonable care has been taken in the preparation and completion of this article, no responsibility is accepted for any errors or omissions. This article has been prepared for information purposes only and does not constitute legal or other advice.