Legal aspects of online price monitoring / web scraping
Once in awhile our prospects ask us questions like ‘Is it legal to monitor prices online?‘.
Our answer to that question is always – of course, it is! We’re a serious business, employing over 100 full-time employees – we would never jeopardize so many jobs if we were having any doubts in legality of what we’re doing.
However, since we have noticed that there is a lack of documentation on the topic, we have decided to list what we have learned over time (keep in mind that Price2Spy (https://www.price2spy.com/en/) has been in business since 2011 and that it currently has over 680 clients ):
Q: Is it legal to monitor prices on someone else’s website? The prices are visible to anyone visiting the website.
A: Yes. The prices, along with other information displayed, are publicly available – to anyone visiting the website. This includes human visitors but also various bots.
Q: But is it legal to monitor such prices automatically?
A: Yes. In legal terms, it does not make any difference if you visited the website yourself and noted down the price in a notepad (or an Excel file), or you used a tool that automatically captures the price, and stores it for analytical purposes.
Q: Some websites have terms and conditions, which do not allow data to be used for other purposes than the website owner has foreseen. Again, is price monitoring on such websites legal?
A: Yes, as long as you do not explicitly accept such terms and conditions. In other words, a website cannot disallow you to read the data which is publicly open.
Q: Certain B2B websites do not show prices before I login to their website. Is it legal to monitor prices from such a website?
A: Does this website ask you to accept their terms and conditions when registering for such a B2B account? If so, please check such terms and conditions. Please note that this is the reason why Price2Spy will always ask you to supply credentials for B2B websites – we consider you the owner of such a B2B account and that maintaining it is your responsibility.
Q: I represent a brand that wants to monitor the prices of its own products on retail websites located in the EU. Is this legal?
A: Of course it is. Please check ‘Treaty on the Functioning of the European Union’ – Article 102 of TFEU
TFEU 102 says that the following is illegal:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
In short, collecting, monitoring and analyzing pricing data is by no means prohibited.
Q: Is there a market where it is legal for a brand to impose selling prices?
A: Yes, unlike the EU and most other countries worldwide, imposing prices on the market is perfectly legal in the US.
Q: Price2Spy is based in Serbia, and Serbia is outside of the EU. Does this make any difference to the legal aspects?
A: Practically – No. Although Serbia is not an EU member state yet, its laws are very much in line with the EU laws. Again, Price2Spy operates a business that is fully legal, both by the EU and Serbian laws, and we would never do anything that could jeopardize this position.
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Confused as some sites say "by using this site you agree to the T&C" which includes "you may not access this service with automated software".
You only agree to it when making an account. You don't agree to it when you visit the site.
As I mentioned above in the post, a website cannot disallow you to read the data which is publicly available. So, yes, price monitoring on such websites is legal too.
Is this position derived from the outcome of the HiQ v LinkedIn case which has been referred to Supreme Court or is there another basis?
OP says "as long as you do not explicitly accept such terms and conditions" but many T&C say "By using this service you agree to our terms and conditions" so does that latter statement not count in T&Cs?
Seems ultimately it is about what you do with the data not how you acquire it.
Yeah, it's a bit complicated issue which is why the Supreme Court of the U.S has to be involved in that case.
However, the basic legal principle still stands - if others haven't agreed to terms and conditions they don't have to follow rules written in them. They only apply to users that explicitly agreed to follow them. A website can't force others to do (or refrain from doing) something just because they happened to land on it. Much in the same way, I can't force you to do something just because you read this message.
Web crawlers aren't really users and don't agree to any T&Cs, they just scrape publicly visible data. From what I understand, that was the reasoning behind the court ruling in favor of HiQ.
Of course, if the U.S Supreme Court rules otherwise, web crawlers will be illegal in the U.S. (but not in the EU or other countries).
Fascinating case (ref: https://bit.ly/39qlY82)
Seems to me preliminary injunction granted to avoid HiQ suffering fatal hardships before underlying dispute resolved. "Likelihood of success" condition satisfied by "has raised serious questions". Interpreting this as green-light seems ambitious to me although as suggested above ultimately it is what you do with the data that will land you in hot water or not.