In the context of the rapid development of the Internet economy and technology, data has become a core factor driving economic growth. As an efficient means of acquiring data, data scraping has been widely used by numerous enterprises, enabling them to quickly obtain information and identify market opportunities. However, due to the diversity, complexity, and concealment of data scraping technologies, their extensive application has also given rise to numerous acts of unfair competition, thereby increasing the difficulty of legal regulation. Therefore, Internet operators need to clarify the legal regulation of unfair competition acts related to data scraping in order to effectively avoid relevant risks and fully leverage the significant advantages of data.
To assist enterprises and Internet operators in mastering the key points of legal practice related to data scraping, focusing on the legal definition of data scraping, elements of judicial review, the application of trade secret provisions, rights and interests in scraping public data, the setting of Robots protocols, the determination of compensation amounts, and key compliance recommendations, we have selected the following three popular Q&A items from Chapter III: Legal Regulation of Unfair Competition on the Internet (Data Scraping) of the Practical Q&A Handbook on Cutting-edge Hot Issues in Intellectual Property, jointly compiled with Wolters Kluwer, Lusheng Law Firm, and its strategic partner Rouse International, to share with you.
Selected Practical Q&A
Q1
[Legal Basis] Where is the regulation of data scraping mainly reflected in the current Anti-Unfair Competition Law?
Under the current legal system in China, the main paths for determining that data scraping constitutes unfair competition include the following three: application of the special provisions on the Internet, application of the general clause of the Anti-Unfair Competition Law, and application of the trade secret provisions.
① Application of the special provisions on the Internet
In response to new Internet business models and modes of operation, Article 12[1] of the Anti-Unfair Competition Law of the PRC regulates acts that obstruct or sabotage the normal provision of products and services by other business operators through the use of network technology. However, in practice this catch-all provision is often difficult to apply to regulate data scraping. On the one hand, after the promulgation of the catch-all provision in the special Internet article, authoritative constituent elements for its application have not yet been formed, making it difficult to apply in practice. Judges lack sufficient basis for legal reasoning and judgment, which leads to strong subjectivity and makes it difficult to obtain consensus from both parties to a dispute. On the other hand, data scraping is technologically neutral, and the determination of “obstruction” or “sabotage” cannot accurately address current acts of improper data scraping. In the digital economy, data sharing has become normalized, and advances in data scraping technology mean that it does not necessarily affect the normal operation of other business operators. Determining unfair competition on the basis of “obstruction” or “sabotage” has limitations in application.
② Application of the general clause of the Anti-Unfair Competition Law
In Chinese judicial practice, Article 2[2] of the Anti-Unfair Competition Law is most frequently invoked to determine that data scraping constitutes unfair competition. Authoritative constituent elements for the application of this provision have already been established and are widely applied in determining improper data scraping. The elements identified in judicial practice include: a. the scraped party enjoys lawful interests in the data; b. there is a competitive relationship between the parties; c. the conduct in question is improper, usually reflected in a violation of the principle of good faith and business ethics; and d. substantial damage has been caused, mainly including damage to market competition, the rights and interests of business operators, and the interests of consumers, and there must also be a causal relationship between the data scraping conduct and the actual damage.
③ Application of the trade secret provisions
Article 9[3] of the Anti-Unfair Competition Law defines the scope of trade secrets. In practice, there is likely to be an overlap between business operation data and the scope of trade secrets, that is, the scraped data may constitute trade secrets and thus fall within the scope of protection under Article 9 of the Anti-Unfair Competition Law. In fact, enterprises often claim trade secret protection for data they collect or generate. For example, the “Developer Agreement” of a certain microblogging platform provides that user data constitutes the platform’s trade secrets. It should be noted, however, that business operation data must satisfy the three elements of secrecy, value, and confidentiality measures in order to constitute trade secrets.
Q2
[Scraping Public Data] Can an enterprise claim rights and interests under competition law for the collection and compilation of public data?
Raw data refers to data that has not been processed and that is generated without reliance on other data. Derivative data refers to new data or data products with independent value content that are formed on the basis of raw data lawfully obtained, through a series of processing steps such as collection, screening, compilation, and analysis. Derivative data enjoys rights and interests under competition law because creative labor has been added to it. It is worth noting that data interests are not statutory rights. The attribution of data interests and the boundaries of rights must be defined based on the content and attributes of the disputed data, as well as the degree of contribution made by the data holder to the formation of data interests.
According to current Chinese laws and regulations, enterprises may lawfully obtain raw data, including public data, and on this basis carry out collection, screening, compilation, analysis, and other processing to form new data or data products with valuable content. Enterprises enjoy rights and interests under competition law in such data because they have added creative labor to the raw data. Derivative data products developed on the basis of lawfully collected data or data generated by the enterprise itself are protected by law.
Q3
[Compliance Recommendations] What factors should Internet operators pay attention to when acquiring and using Internet data in order to avoid constituting unfair competition?
The existing legal framework for the protection of trade secrets provides enterprises with three types of protection: civil, administrative, and criminal.
To avoid constituting unfair competition, the acquisition and use of data should follow the principles of lawfulness and reasonableness. In current disputes over unfair competition on the Internet, the main types of unfair competition acts related to data acquisition and use are: first, data crawling in violation of agreements, and second, unauthorized acquisition of data. When determining whether data acquisition and use constitute unfair competition, courts mainly examine whether the method of data acquisition is legitimate. For example, data obtained by associating accounts on other platforms with the consent or authorization of users is generally not considered improper; whereas data obtained by crawling in violation of relevant valid agreements or by using technical measures to intrude into servers is generally considered improper. In addition, courts will also consider whether the result of data acquisition, collection, and use has caused damage to the lawful rights and interests of other business operators. If the result of data acquisition substantially substitutes the lawfully provided online products or services of other business operators, it may constitute unfair competition such as “fattening oneself by eating others” or “free-riding” under the Anti-Unfair Competition Law. If the result of data acquisition does not cause losses to business operators, including losses to the data itself and related competitive interests, it is generally not considered improper.
On this basis, Internet operators should pay attention to the following points when acquiring Internet-related data: first, acquire data through legitimate means, obtain relevant data of users or Internet platforms by obtaining authorization or other lawful means, respect the Robots protocols of other Internet enterprises (unless the Robots protocol itself is unlawful or unreasonable), and refrain from acquiring data by unauthorized technical intrusion into servers. Second, they should avoid causing damage to the lawful rights and interests of other business operators, public interests, or consumer interests when acquiring and using data.
References
[1] Article 12 of the Anti-Unfair Competition Law: “Business operators engaging in production or business activities through the Internet shall comply with the provisions of this Law. Business operators shall not use technical means, by influencing users’ choices or by other means, to engage in any of the following acts that obstruct or sabotage the normal operation of online products or services lawfully provided by other business operators: (1) inserting links or forcibly redirecting targets within online products or services lawfully provided by other business operators without their consent; (2) misleading, deceiving, or forcing users to modify, disable, or uninstall online products or services lawfully provided by other business operators; (3) maliciously rendering online products or services lawfully provided by other business operators incompatible; (4) other acts that obstruct or sabotage the normal operation of online products or services lawfully provided by other business operators.”
[2] Article 2, Paragraph 1 of the Anti-Unfair Competition Law: “In their production and business activities, business operators shall follow the principles of voluntariness, equality, fairness, and good faith, and abide by laws and business ethics.”
[3] Article 9 of the Anti-Unfair Competition Law: “Business operators shall not commit any of the following acts infringing trade secrets: (1) obtaining the right holder’s trade secrets by theft, bribery, fraud, coercion, electronic intrusion, or other improper means; (2) disclosing, using, or allowing others to use the right holder’s trade secrets obtained by the means mentioned in the preceding item; (3) disclosing, using, or allowing others to use trade secrets in their possession in violation of confidentiality obligations or the right holder’s requirements for keeping trade secrets confidential; (4) instigating, inducing, or assisting others to violate confidentiality obligations or the right holder’s requirements for keeping trade secrets confidential, so as to obtain, disclose, use, or allow others to use the right holder’s trade secrets. Where any natural person, legal person, or unincorporated organization other than a business operator commits any of the illegal acts listed in the preceding paragraph, it shall be deemed an infringement of trade secrets. Where a third party, knowing or should have known that an employee or former employee of the trade secret right holder or any other entity or individual has committed any of the illegal acts listed in the first paragraph of this Article, still obtains, discloses, uses, or allows others to use the trade secrets, it shall be deemed an infringement of trade secrets. For the purposes of this Law, ‘trade secrets’ mean technical information, business information, and other commercial information that is not known to the public, has commercial value, and for which the right holder has adopted corresponding confidentiality measures.”
Other Excellent Q&A Covered in This Chapter:
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[Definition, Manifestations, and Characteristics of Data-related Unfair Competition] What is data-related unfair competition? What are its main manifestations? What characteristics does it have?
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[Determination of “Competitive Relationship”] In light of the particularities of the Internet economy, where there are significant differences in the business content and business models between parties, will the court adopt an expansive or restrictive interpretation when determining whether a “competitive relationship” exists?
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[Substantive Review Elements of Data Scraping Conduct] In judicial practice, what are the main factors that courts consider when reviewing the legitimacy of data scraping conduct and the resulting damage?
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[Requirements for Applying Trade Secret Provisions] Under what conditions can data scraping conduct be regulated by applying the trade secret provisions?
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[Setting of Robots Protocols] May Internet platforms set Robots protocol clauses at will? What unfair competition risks may crawler protocols bring?
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[Determination of Compensation Amount] If data scraping conduct is determined to constitute unfair competition, on what main factors do courts generally base the determination of the amount of compensation?
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[Compliance Recommendations] What factors should Internet operators pay attention to when acquiring and using Internet data in order to avoid constituting unfair competition?
Authors of This Chapter
Li Xin Senior Lawyer
Lusheng Law Firm, Beijing
Email: xli2@lushenglawyers.com
Liu Guangyu Paralegal
Lusheng Law Firm, Beijing
Email: cliu4@lushenglawyers.com
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The Practical Q&A Handbook on Cutting-edge Hot Issues in Intellectual Property is jointly and meticulously authored by Wolters Kluwer, Lusheng Law Firm, and its strategic partner Rouse International, and was officially released online in November 2024. The handbook is compiled by more than 30 senior intellectual property experts, featuring 108 intellectual property questions divided into 11 major chapters, and comprising a total of 100,000 words of in-depth analysis. It focuses on the most cutting-edge issues currently of greatest concern in the industry, comprehensively covering key areas such as patents, trademarks, copyrights, trade secrets, unfair competition on the Internet, intellectual property capital contribution, and punitive damages for intellectual property. Adopting a “Q&A” format, it distills the hot topics of concern to intellectual property practitioners and provides readers with the latest legal interpretations, case analyses, and practical guidance.
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