Screen scraping – the technique of automatically collecting, parsing, and organizing data from the web – has over the past two decades been used for everything from targeted advertising to price aggregation to academic research. It can, however, be detrimental to the data host and consumer. Scraping is parasitic when it undercuts a website’s revenue by republishing data without requiring users to view supporting advertisements. It can also facilitate copyright infringement or overload the data host’s servers. What’s more, screen scraping can raise privacy concerns for consumers if it collects identifiable information or enables new forms of surveillance. In the banking context – where login credentials may be shared to allow the scraping of account data – there are additional concerns about cybersecurity, data breaches, and liability allocation for unauthorized transactions. These various instances of screen scraping have led to litigation against scrapers, most notably in the U.S.
Despite such differences, the rise of data-sharing under the banner of “Open Banking” may bring a certain level of convergence. I argue that, to the extent Open Banking mandates or facilitates data sharing – depending upon the regulations in each jurisdiction – it could reduce the need for screen scraping. This is especially so in the Europe – and even more so if the UK Smart Data initiative expands these data-sharing principles beyond the financial sector. Conversely, the financial data-sharing environment is less evident in the U.S., which lags in building up Open Banking. Australia lies in the middle of these two extremes: It has a comprehensive Consumer Data Rights (CDR) regime that can theoretically reduce the need to screen scrape. However, given that it imposes no ban on screen scraping (unlike the EU/UK model), it has a loophole for data miners to work around the new regime and continue scraping data.
In short, with the emerging trend of data sharing, one could witness a sea change in the screen scraping legal landscape. Insofar as data sharing schemes enable information to flow between entities, one would expect some level of convergence. However, such a convergence is qualified by the institutional design of data-sharing schemes – whether they explicitly address screen scraping (as in Australia and the UK) and whether there is a government-mandated data-sharing regime (as in the U.S.). These are, of course, just preliminary findings, though they can serve as a starting point for a larger project exploring the role of screen scraping in the digital economy. Debates continue on the legality of screen scraping and some issues not discussed in my paper – such as the link between data sharing and antitrust and conflict of laws. It remains to be seen how these three nations and others develop a more holistic approach to this technology by striking the right balance between different stakeholders entering the age of big data.
This post comes to us from Dr. Han-Wei Liu at Monash University, Australia. It is based on his recent paper, “Two Decades of Laws and Practice Around Screen Scraping in the Common Law World and Its Open Banking Watershed Moment,” available here.