UK: Don’t Let the Web Bugs Bite: How to Stop Spidering

Last Updated: 1 July 2002
Article by Raffi Varoujian

Spiders and other automated software agents are sent out by their owners to “search and retrieve” useful information from the internet on behalf of their owners. They are invaluable tools for ensuring search engines are kept up-to-date and for market research purposes. But they are also used by companies to dig the dirt on their rivals.

To what extent is spidering legal and what can be done to prevent it? Solicitor Raffi Varoujian of City law firm Field Fisher Waterhouse discusses the options.

Spiders can be assigned a specific set of tasks to ensure that they only bring back information which is useful to the sender. This is done by providing them with either a URL or directions to a server’s file directory. Once there, it collates data from the chosen location and via any hypertext links and returns them to its owner.

Most businesses actually welcome visits from spiders which are being used to modify search engines. Some even lure them there by using metatags which direct them more easily to their websites in a bid to increase their chances of being favourably ranked by them.

However, the intentions of spiders are not always so honourable. They can be used by competitors to find out everything, from details of a rival’s products and pricing to their annual profits and identifying failing areas of their business – a worrying prospect, when one considers that a competitor can send out thousands of spiders a day.

Antidotes

The issue of exactly what legal measures one can take to prevent spiders entering a website have been discussed at great length in the US where guidance is provided by case law. In the UK, however, it is a grey area and will remain so until, as in the US, a relevant dispute is brought to court and a decision is made. That said, existing legislation does offer a certain amount of protection in the meantime.

Database rights

The Council Directive 96/9/EC on the legal protection of databases aims to protect the investment in the creation and contents of a database. It applies to databases which are collections of independent works, data or other materials arranged in a systematic or methodical way. Providing they have a home page complete with index and separate web pages, systematically arranged and containing additional data, most websites will qualify as databases and will therefore be offered protection.

To date, there has only been one case in the UK in which the issue of database rights was addressed, that of British Horseracing Board Limited v William Hill Organisation Limited. Here, Mr Justice Laddie interpreted the Directive very widely and, as such, most websites will be protected by database rights providing there has been a substantial investment in obtaining, verifying or presenting the contents of the database (ie in terms of having collected, checked and formatted data).

Infringement will take place if either the whole, or a “substantial” part, of the database contents are “extracted” or “reutilised” without the database creator’s permission.

In this context, “extraction” applies to the temporary or permanent transfer of all, or a substantial part of, the contents to another medium by any means or in any form. “Re-utilisation” is any form of making available to the public all, or a substantial part of, the database contents. The assessment of whether or not “substantial” parts have been taken is carried out either on a qualitative or quantitative basis, or both.

However, repeated and systematic extraction, re-utilisation, or both, of insubstantial parts of the contents of the database are also illegal if they are seen to conflict with normal exploitation of the database, or unreasonably prejudice the legitimate interests of the database creator.

A spider permanently transfers information from the database it is searching back to the server from which it was originally sent. Theoretically, this could qualify as “extraction” of data under the Directive. That said, it could also be argued that, as spiders are merely compilers of data, whether the information collected is then “re-utilised”, for the purposes of the Directive, will depend on how it is used subsequently.

This would certainly be the case if the information was published on a website to show comparison between different companies' products and prices as the website owner would clearly be guilty of “making available to the public” information collated and would therefore be more likely to offend the principles which the Directive was enacted to protect.

However, it is worth noting that “extraction” or “re-utilisation” in isolation will not automatically constitute infringement. It will depend on whether or not “substantial” parts of the website have been extracted or re-utilised.

A spider can visit the same website several times a day. If, on each occasion, it were to take the prices and product descriptions of all of a company's products, this would probably constitute a “substantial” extraction from the database as a whole. However, if the spider only looked at certain products, then the extraction may not be “substantial” and would not therefore be considered to be infringing. That said, if a spider were to only extract at certain products but, say, as often as once a day, it might still also be construed as “substantial” in the sense that it was repeated and systematic. A German court took this view in the Berlin Online case in which repetitive use of a meta-search engine on a particular online database was found to amount to repeated and systematic extraction of “insubstantial” parts of the database.

The meaning of “substantial” will also be assessed in relation to how important the data in question would be to the extractor and what portion of the website’s data content as a whole is being used.

Just how far reaching the scope of the Directive will be remains to be seen as we still await the European Court of Justice’s views on the matter following the referral of certain aspects of the BHB case to it by the Court of Appeal. In the meantime, it can be said that the use of spiders to extract information from websites is capable of infringing database rights.

Breach of Contract

Spiders will not, of course, read on-line terms and conditions or “click-accept” them before entering a website and are unlikely, in any case, to enter a website via its home page. Its senders could therefore argue that they were not aware of any terms and conditions of entry to a website and were not therefore bound by them.

The “Robots Exclusion Protocol” has been designed to help website owners and spider programmers agree on a way to catalogue websites. There is an understanding between website owners and search engines that, while websites are under construction, certain pages will not be ready for immediate access by spiders. By placing a metatag, or a small text file (“robot.txt”) in the root directory of their main site, website owners can ensure that spiders programmed to recognise the protocol will not to visit and log pages with that text.

In order to use breach of contract as an effective method of deterring spiders, website owners should consider the actual damage which they could claim in the event of suffering such a breach. This issue has not yet been considered in the UK, but there have been several cases in the US where website owners can bring actions for:

·          trespass

·          copyright infringement

·          unfair business practices

·          misappropriation

·          false advertising

·          federal trade mark dilution

·          injury to business reputation

·          interference with effective economic advantage

·          unjust enrichment

Loss of capacity to computer systems

In the US case of eBay v Bidder's Edge, the damages considered included loss of capacity to computer systems.

Spiders can consume some of the processing and storage resources of servers and, in doing so, can impair and slow down the ability of genuine website browsers to visit the site. In the case, spidering had affected a mere 1.53% of eBay's capacity by making 100,000 hits per day, yet the court held that Bidder's Edge had nevertheless deprived eBay of the ability to use that portion of its personal property for its own use.

In the case of Ticketmaster v Tickets.com, the court took a different view. Although it was recognised that there damage from loss of capacity was possible, it was not considered to be sufficient enough to support a claim that it had damaged the website’s ability to carry on its business as the use was minimal. In the more recent case of Oyster v Forms Processing, the court agreed with the decision originally reached in eBay case. However, it also suggested that whether or not intrusion by spiders caused substantial interference was not the real point – the tort was committed by unauthorised use of the website owner’s property.

Computer Misuse Act 1990

The Computer Misuse Act predates the invention of spiders, but it could arguably be applied to their use. This might be the case if, for example, it could be proved that a spider had been used to access a website where access was unauthorised, in itself a criminal offence.

A website owner wishing to rely on the Act as a way of stopping spiders entering its website might wish to expressly prohibit their entry under its terms and conditions of use. The owner would also have to ensure that metatags were removed as these are primarily used to attract search engine spiders to a site.

Copyright

Websites are protected as databases or compilations under the Copyright, Designs and Patents Act 1988, although actually proving that use of spiders had infringed copyright could prove quite a challenge.

Conclusion

Only time will tell how the UK courts will view the use of spidering. In the meantime, however, website owners can at least fall back on existing legislation by way of protection, although there is by no means any guarantee that they will succeed.

Those responsible for sending spiders would be wise to seek legal advice as to what extent their intended extraction and re-utilisation of data, and the regularity of its extraction, can be legitimately continued before it runs the risk of landing them in court.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.