Can the Small Print help? - can Terms and Conditions be used to Prevent Scrapers?
The Irish court also stressed that unusual or onerous terms must be fairly brought to the attention of users where he refers to the case of Interfoto Picture Library v Stiletto Visual Programmes4. In that case the court held that "…if one condition in a set of printed conditions is particularly onerous or unusual, the party seeking to enforce it must show that the particular condition was fairly bought to the attention of the other party."
What does this mean?
- ensure that the online terms are clearly and prominently available – a clear link at the bottom of each page would seem to satisfy this; and
- ensure that their terms include a clear statement as to what users are permitted to use the website for, and in particular that they are not permitted to scrape the content for commercial use.
The simple answer is probably not in isolation. Firstly, even if the Ryanair decision had been reached in the English courts, Ryanair would still have needed to get over the hurdle of proving what loss it had suffered as a result of the scraping. This perhaps demonstrates why website operators have generally based anti-scraping claims on infringement of their intellectual property rights; where – for example - it can be possible to claim for damages on the basis of the unfair profits made by the infringer.
Secondly, there remains a dearth of case law in this area generally and if we look at the decisions of other European jurisdictions, it is clear that no settled position has been reached. A Spanish court found against Ryanair in a similar case against an online travel agency, eDreams, refusing to accept the existence of any contract between them. The court held that, as Ryanair chose the internet as a distribution channel, it must accept the lack of restrictions that are typical on the internet. Nonetheless, soon after the Spanish decision a German court ruled in favour of Ryanair in almost identical circumstances, in its claim against the online travel agency Vtours.
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Read about whether website terms and conditions can be used to effectively prevent scraping. Can the small print help?
"It is clear that the arguments between website owners and data scrapers will continue."