Website database owners may use terms and conditions to prohibit screen-scraping

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On 15 January 2015, the Court of Justice of the European Union (the “CJEU”) gave a preliminary ruling in the case of Ryanair Ltd v PR Aviation BV (Case C-30/14), which could have a significant impact on both website database operators and websites that carry out “screen-scraping” activities (such as price comparison websites). The CJEU held that, where website operators are unable to rely on the Database Directive (96/9/EC, the “Directive”) in order to prevent screen-scraping, they might potentially be able to use their website terms and conditions in order to make a breach of contract claim.

Legal Background

The Directive provides two forms of protection in respect of databases: (i) Article 3(1) states that the structure of the database may be protected by copyright; and (ii) Article 7, otherwise known as the “sui generis” or “database” right, protects the actual contents of the database.

Article 3(1): “…databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright…”

Article 7(1): “Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”

A “lawful user” of the database is given broad rights under the Directive to access and use the contents of a database. Article 6(1) of the Directive permits lawful users to make a copy of a database protected by copyright where the user must do so in order to access its contents. In addition, Article 8 of the Directive permits lawful users of a publically-available database to extract and/or reuse “insubstantial parts” of its contents (being either qualitatively or quantitatively insubstantial) for any purpose whatsoever. Article 15 prevents these rights from being contractually excluded.

However, database owners can prohibit lawful users from using their publically available database in any way that would “conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database” or result in “prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database” (Articles 8(2) and (3)).

Ryanair v PR Aviation

In the Ryanair case, PR Aviation, a price-comparison website, extracted information about Ryanair flights from Ryanair’s website using an automated system (i.e. screen scraping). Ryanair argued that this was in breach of its website terms and conditions, which all users of the website have to agree to in order to access flight information. In particular, these terms and conditions state that:

“You are not permitted to use this website other than for the following, private, non-commercial purposes:

  1. viewing this website;
  2. making bookings;
  3. reviewing/changing bookings;
  4. checking arrival/departure information;
  5. performing online check-in;
  6. transferring to other websites through links provided on this website; and
  7. making use of other facilities that may be provided on the website.

The use of automated systems or software to extract data from this website or for commercial purposes, (‘screen scraping’) is prohibited unless the third party has directly concluded a written licence agreement with Ryanair in which permits it access to Ryanair’s price, flight and timetable information for the sole purpose of price comparison”.

PR Aviation argued that the Database Directive permitted them to access the website and use the database contents by virtue of Articles 6(1) and 8(1), and that Ryanair could not contractually exclude them from doing so (in accordance with Article 15). The question then arose as to whether Ryanair’s database did qualify for protection under the Directive and, if not, what the position would be on contracting out? This question was referred to the CJEU.

The CJEU held that, where a database does not qualify for protection under the Directive (i.e. it has not satisfied the criteria in Articles 3(1) or 7(1)), Articles 6(1), 8(1) and 15 do not apply, meaning that PR Aviation could not rely on them in order to avoid the breach of contract claim. As such, PR Aviation would be bound by Ryanair’s website terms and conditions, which prohibit screen scraping. The case will now return to the Dutch courts, where it will be interesting to see if the courts impose sanctions on PR Aviation (for example damages) or simply issue an injunction to prevent PR Aviation from carrying out such activities on the Ryanair site in future.

The Effect of the Ryanair Decision

There are two principal lessons to be drawn from the Ryanair decision. The first is that website database owners should consider including clauses in their website terms and conditions that expressly prohibit screen scraping. Provided that the terms and conditions are properly brought to the user’s attention, ideally by the user having to actively accept them before using the site (in order to ensure that they are enforceable), this will add an extra layer of protection in cases where (as with Ryanair) it is not possible to rely on the protections granted by the Directive. Second, businesses that do carry out screen scraping activities are advised to review their business strategies due to the greatly increased risk of contractual claims being made by database owners.

The other point to note is that this decision gives rise to a peculiar situation whereby a database owner whose rights are protected under the Directive, meaning that an infringer could seek to rely on Articles 6(1), 8(1) or 15 (for example) in their defence, is in a weaker position than a database owner such as Ryanair whose rights fall outside of the remit of the Directive and can simply rely on their website terms and conditions to make a breach of contract claim. Still, the prudent approach would be for database owners to amend their terms and conditions to prohibit screen scraping in order that they have the opportunity to make a breach of contract claim against those who carry out such activities.

By Felicity Reeve and Will Deller

Will is an associate in our Media, Entertainment and Sports Group, based in London. Will's sports practice is focused on commercial/contractual matters, though he also has experience in advising on league structuring, rule drafting/interpretation and other regulatory issues. On the commercial side, he routinely advises on sponsorship and media rights, but in addition he advises clients on a range of other areas of law, including gambling regulation, advertising and consumer law. In his time at Bird & Bird, Will has gained experience in working across a number of different sports, and in recent years he has developed a particular focus on esports, where he has advised industry stakeholders on setting up new esports leagues, sponsorship, player contracts and a variety of other issues.

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