By order dated November 1, 2024, the Federal Court of Justice (BGH) initiated a leading case procedure regarding a highly publicized case constellation surrounding so-called ‘scraping’ (Case No.: VI ZR 10/24). The associated fundamental clarification of legal issues particularly concerns the scope of data protection and copyright positions in the digital age, and further emphasizes the economic relevance of this topic for data-driven business models.
Background: Scraping in digitized markets
Scraping refers to the automated reading of data from publicly accessible websites, often using specialized software. Such practices are particularly important for companies that rely on the collection and analysis of large data sets to provide or improve digital services. In contrast, however, are the legitimate interests of the operators of the respective platforms – for example, within the framework of intellectual property rights, data protection regulations, or protection against unfair competition.
The diversity of the areas of law affected – from data protection regulations to copyright claims and competition law considerations – regularly presents courts with the challenge of assessing complex constellations of interests in light of current technological developments.
Leading case procedure: Purpose and structure
Selection under Section 20 (1) Sentence 1 No. 1 LwVG
As stated in the published decision, the matter was designated as a leading case procedure due to its fundamental importance and the large number of similar disputes, pursuant to Section 20 (1) Sentence 1 No. 1 of the Leading Decision Submission Act (LwVG). With this selection, the BGH is responding to considerable uncertainty within the lower courts as well as in day-to-day business practice.
Specific legal questions with significant practical relevance
A central role is likely to be played by clarifying the conditions under which scraping of personal or copyright-protected information is permissible or subject to claims for injunctive relief. The following aspects are particularly significant:
- The scope of consent or legitimate interests in automated data processing under the General Data Protection Regulation (GDPR).
- The copyright protection of databases and their contents, particularly with regard to the rights of database makers (§ 87a et seq. UrhG).
- The specification of competition law protection mechanisms, for example with regard to market conduct rules and unfair obstruction.
- Claims for sanctions and injunctive relief by private and institutional rights holders against users of automated extraction tools.
Impacts on companies and industries
The forthcoming leading decision of the BGH will be of considerable importance not only for players in the digital economy but also for traditional economic sectors, as data-driven processes have become established across all industries. In particular, companies that base their digital services on publicly available information or evaluate third-party content are often faced with a legal gray area regarding the permissibility of their approach.
At the same time, the pending decision also touches on the implementation and technical design of access protection measures, as well as the question of the extent to which the legal status of data infrastructures can be appropriately protected.
Ongoing proceedings and note on the presumption of innocence
It should be emphasized that the proceedings in question are still pending, and a final ruling by the highest court has not yet been issued. The presumption of innocence applies – any evaluation is restricted to the specifically negotiated set of facts. A conclusive report on the reasons for the judgment and their broader applicability in future case scenarios can only be provided after the decision has been announced.
The developments in the area of scraping and the associated legal issues highlight the increasing complexity of business models in the digital economy. It is therefore advisable for companies and institutions to closely monitor the guidelines and rationale of the BGH in the further proceedings and analyze their consequences for their own practice.
Source reference:
Order of the BGH dated 01.11.2024, Case No.: VI ZR 10/24.
For more in-depth questions regarding the legal framework and implications in connection with data-driven business models, data protection, and intellectual property, the Rechtsanwälte of MTR Legal Rechtsanwälte are pleased to offer legal advice.
