The Great Scrape: How Website Owners and Data Scrapers Can Avoid Litigation

Data scraping—extracting large amounts of information from a website using automated software programs called “bots”—has been a growing subject of costly litigation. But it doesn't have to be. The first article of this two-part series outlined the legal claims companies have brought against scrapers. This second part will identify the measures that websites can implement to discourage data scraping and the precautions scrapers can take to avoid litigation.

Website Owners

The best preventative measure a website owner can take against data scraping is to insist its users affirmatively agree not to engage in the practice. This can be accomplished through a “clickwrap” agreement, which requires website visitors to check a box assenting to terms of use before being able to access any content. Website users who chose to violate the agreement can be held legally accountable for breaking their promise not to scrape.

“Browsewrap” agreements that only appear somewhere on the website are much less reliable. Several courts considering data scraping claims have held that a website user must have had actual or constructive knowledge of the site's conditions. If a website neither prompts users to review its terms of use nor prominently displays them, it will be difficult to establish either of those requirements.