Obstruction by Screen Scraping?

If the operator of an online service has no interest in third parties reading out and using for their own purposes the information and data made available by it, it simply does not provide them in machine-readable form. Accordingly, for anyone who nonetheless wishes to use the publicly accessible data, there remains only the option of reading out the data from the operator's screen display. The Federal Court of Justice (BGH) has today decided that this procedure, referred to by the term "screen scraping", does not constitute anti-competitive obstruction (judgment of 30.04.2014, Az. I ZR 224/12).

The plaintiff was an airline that offers inexpensive flights on the internet. For the purpose of booking flights, the company maintains the corresponding flight data together with prices on its website and also offers compatible additional services from other companies, such as hotel accommodation and rental cars. To do this, the user must accept the general terms and conditions of the provider, which prohibit the use ofautomated systemsfor reading out data from their website.

This is precisely what the operator of a flight booking portal has nevertheless done, in order to display the data obtained by means of "screen scraping" in the context of its online service and to enable flight bookings. The portal operator charges fees for the mediation, which are added to the flight price.

The airline saw in this a misuse of its booking system and an impermissible infiltration of its direct distribution system. It sued the portal operator for an injunction against the automated reading out of the data it maintained or the mediation of the flights it offered.

The Decision of the Court

The court has in any caseanti-competitiveobstruction denied. Taking into account the overall weighing of the interests of competitors, consumers and the general public, it is not to be assumed that the disputed mediation of flights by the portal operator would result in the airline no longer being able to assert its services on the market through its own efforts in an appropriate manner. This requires a noticeable impairment of the competitive possibilities for development, which goes beyond a merely inherent competitive impairment.

In the view of the court, the business model of the flight mediation portal promotes price transparency on the market and facilitates the customer's finding of the cheapest flight connection. For this reason, it is not to be assumed that the interests of the airline outweigh those of the portal operator. Moreover, the fact that the latter disregards the will explicitly expressed in the general terms and conditions and opposed to screen scraping does not lead to obstruction. The acceptance of these terms does not, namely, equate to technical protective measures against the reading out of data.

The proceedings were remitted to the Higher Regional Court (OLG) Hamburg. It will now have to examine whether the airline may be able to base its claims on misleading conduct or on supplementary competition law protection of performance.