Data mining or trespass?

Australian companies that use Web crawlers or similar data mining technologies face legal liability under trespass laws following two recent court cases in the US.

Leif Gamertsfelder, a member of Deacons Lawyers Digital Industries Group, said both cases have legal implications for every Australian company using this type of technology as part of its operations.

"If Australian trespass laws are used to protect certain Web sites from spiders, courts will need to ensure the correct balance is struck. If these laws are abused there may be stark implications for the use of technologies that are the very basis of the Internet, such as linking and metasearch engines," he said. Inc (a domain registry) and eBay have successfully argued that companies using data mining technologies that extract data from their respective sites breach trespass laws.

Both cases are headed for the US Federal appeals court but if both organisations can defend the injunctions granted by the lower courts Gamertsfelder believes it will have "chilling implications" on the use of spider technologies.

He said it is not implausible that an Australian test case could be brought before the courts to determine whether trespass laws could be used to protect valuable information and the information processing resources of Australian companies.

As a result Australian companies that spend significant resources aggregating valuable data may use these laws to protect data from 'free riders'.

Gamertsfelder said it is not just the valuable data that sits on company servers that is at stake.

"The use of Web spiders by rival companies can tie up substantial processing resources and if company servers are tied up delivering data to rival companies then legitimate customers miss out; this translates to lost revenue for those who are targetted by Web spiders," he said.

"Australian courts are generally more conservative than their US counterparts and this should ensure that remedies under local trespass laws are only granted in appropriate cases."

Gamertsfelder said an example of an appropriate case could be where a company used data mining technoloy on a competitor's site: to such an extent that it was clearly a breach of the Web site's terms of use, had an adverse affect on the performance of the competitor's site, and where it can be argued that the competitor implied consent to such activity.

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