Can the Small Print help? - can Terms and Conditions be used to Prevent Scrapers?

In other articles on this site we've looked at the extent to which website owners can use intellectual property law to prevent screen scraping. However, it must not be forgotten that most websites (and indeed pretty much all commercial websites) include "terms of use" which generally set out what users are permitted to do with the website, and, crucially, what they are not permitted to do. In many b2c websites it is typical for such terms only to permit domestic use and to include a prohibition on commercial use by users. Can such online terms be used to prevent users from scraping content from the websites? The answer varies across Europe, as explained below.

Ryanair case

Surprisingly there has been little case law that considers the validity of website terms of use. A recent case in the Irish courts, Ryanair Limited v Billigfluege.de GmbH¹, has therefore received much attention. Although the court did not hear the full case, it did give useful guidance on the extent to which terms of use can be used to prevent scraping.

Ryanair brought the case against Billigfluege as a result of what it claimed was "unauthorised scraping and mis-selling of tickets from Ryanair’s website", in breach of the website's terms of use. The terms included a clause that provided that the Irish courts would have exclusive jurisdiction to hear any dispute in relation to them. Billigfluege disputed the exclusive jurisdiction and claimed that the online terms did not amount to a legally binding contract (for a number of reasons, including the fact that there was no payment (or "consideration") required, a traditional requirement for contracts). So, whilst the court did not have to consider the actual screen scraping, it did consider the extent to which the terms formed a contract that applied to users.

The court referred to a US case, Caspi v Microsoft Corporation², which confirmed that the normal principles of contract law are applicable to online terms and that contracts entered into over the internet are no different. It was emphasised, however, that website operators must not attempt to hide their online terms of use, with a quotation from another US case, Spech v Netscape³, confirming that "[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility."

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."

In the Ryanair case the court decided, having considered the above principles, that a legally binding contract had been created on the Ryanair website. The website terms of use were "fairly brought to the attention" of the user, even though users were not forced to indicate their acceptance though any click-box, as might be suggested as a requirement by the US Netscape case mentioned above. Also, the court held that the "consideration" required was fulfilled by Ryanair making available the information on the website.

What does this mean?

The impact of the Ryanair case is significant. Although an Irish decision, the legal principles are similar to those in other common law jurisdictions, such as England. The importance of appropriate website terms of use has therefore been established, and website operators should:

• 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.

So can website terms of use be used to prevent data scrapers?

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.

It is clear that the arguments between website owners and data scrapers will continue. Although website owners can rely on the courts to uphold their rights, and clearly a well prepared, easily accessible set of terms of use will strengthen a website operator's position, the more powerful solution may well be to rely on the increasingly available technological measures to prevent the website from being scraped in the first place.

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