Featuring three essential Q&As on legal frameworks, competition law protections, and compliance strategies for data scraping practices.
As the internet economy and digital technologies continue to evolve at a rapid pace, data has emerged as a key driver of economic growth. Data scraping, a highly efficient means of acquiring large volumes of information, is widely used by enterprises to gain insight and seize market opportunities. However, due to its diverse, complex, and often covert nature, the widespread use of data scraping has also given rise to various forms of unfair competition, complicating legal regulation and increasing compliance challenges. To mitigate related risks and fully leverage the benefits of data, online businesses must understand the legal framework governing data scraping and identify practices that may constitute unfair competition under current laws.
To help enterprises and internet operators navigate the legal landscape of data scraping, we have selected three essential Q&As from Chapter 3: Legal Regulation of Acts of Unfair Competition on the Internet (Data Scraping) of the Practical Q&A Guide to Cutting-Edge Intellectual Property Issues, co-authored by Wolters Kluwer, Lusheng Law Firm, and its strategic partner Rouse. Topics covered include legal definitions of scraping, factors in legal review, application of trade secret provisions, rights over public data, implementation of robots.txt protocols, damage calculation, and compliance recommendations.
Under China’s current legal system, data scraping is classified as a form of unfair competition. The classification follows three main legal approaches: the application of the internet-special provisions, the application of the general provisions of the Anti-Unfair Competition Law, and the application of trade secret provisions.
(1) Applying Internet-specific provisions
Article 12 of China’s Anti-Unfair Competition Law regulates the use of network technology to obstruct or undermine the normal provision of products and services by other business operators. However, in practice, it is often difficult to regulate data scraping.On the one hand, since the introduction of the catch-all clause in the internet-specific provisions, a widely accepted set of criteria for establishing liability has yet to emerge. This makes it difficult to apply the article in practice. Judges often lack a clear legal basis for their reasoning, leading to subjective judgments that are difficult for both parties to accept.
On the other hand, data scraping itself is technology-neutral, making it difficult to clearly define improper data scraping under the standards of "obstruction" and "destruction". In the digital economy, data sharing has become the norm, and advances in data scraping technology do not necessarily interfere with the normal operations of other businesses. Thus, defining unfair competition solely based on “obstruction” and “destruction” is limited in its applicability.
(2) Applying The general provisions of the Anti-Unfair Competition Law
In China’s judicial practice, Article 2 of the Anti-Unfair Competition Law is mostly cited to determine that data scraping constitutes unfair competition. This clause has established a complete and authoritative set of criteria, making it generally applicable in the determination of improper data scraping.In judicial practice, the criteria include:
a) The party whose data is being scraped haslegal rights and interests in the data under theAnti-Unfair Competition Law.
b) A competitive relationship exists between the parties
c) The conduct in question is improper, typically reflected ina violation of good faith and business ethics.
d) Substantial damage has been caused,including but not limited to harm to market competition, the rights and interests of business operators, and the interests of consumers. Additionally, a causal relationship must exist between the data scraping act and the actual damage caused.
(3) Applying Trade secret provisions
Article 9 of the Anti-Unfair Competition Law[1] defines the scope of trade secrets, although in practice there is often an overlap between business data and trade secrets. This means that captured data may qualify as a trade secret and thus fall under the protection of Article 9 of the Anti-Unfair Competition Law.
In reality, organisations frequently seek trade secret protection for the data they collect or generate. For example, Weibo’s “Developer Agreement” stipulates that user data constitutes a trade secret of Weibo. However, it is important to note that for business data to be classified as a trade secret, it must meet the legal requirements of confidentiality, commercial value, and reasonable confidentiality measures.
Depending on whether creative intellectual effort has been applied, data can be classified as raw data or derived data. Raw data refers to unprocessed information that does not rely on other datasets. In contrast, derived data consists of new data or data products that acquire independent value through lawful means, such as collection, selection, sorting and analysis. As derived data involves additional creative effort, its owner may have rights and interests under the Anti-Unfair Competition Law.
It is important to note that data-related rights and interests are not statutory rights. The ownership of data and the scope of rights should be defined based on the content and nature of the disputed data, as well as the data holder’s contribution to its value.
Under China’s current legal framework, organizations may obtain original data – including public data – through legal channels and then collect, organize, analyse and process it to generate new data or data products with valuable content. Derivative data products that are lawfully collected or developed based on self-generated data are protected under the law.
To prevent unfair competition, the acquisition and use of data should adhere to the principles of legality and reasonableness. There are two main types of unfair competition related to data acquisition and utilisation:
1. Data scraping in violation of protocols
2. Unauthorised acquisition of data
When determining whether data acquisition and use constitute unfair competition, courts primarily examine the legitimacy of the acquisition method. For instance, if data is obtained through linked accounts on other platforms with user consent or authorisation, it is generally not considered improper. However, obtaining data by web scraping in violation of valid protocols or bypassing security measures to access a server is typically deemed improper.
Additionally, courts will consider whether data acquisition, collection and use have harmed the legitimate rights and interests of other businesses. If data acquisition substantially replaces online products or services lawfully provided by another business operator, it may constitute “growing fat at another’s expense” or “free-riding” under the Anti-Unfair Competition Law. However, if data acquisition does not cause losses to the business operator – whether in terms of the data itself or related competitive interests – it is generally not considered unfair.
To ensure compliance with fair competition rules, internet operators should follow these key principles when acquiring data:
By following these principles, businesses can mitigate legal risks and avoid potential unfair competition disputes.
In collaboration with our strategic partner Lusheng in China and Wolters Kluwer, Rouse has developed a valuable resource for rightsholders: “The Practical Q&A Guide to Cutting-Edge Intellectual Property Issues in China”. This guide, compiled by over 30 senior China IP experts from the two leading IP firms, addresses the key concerns of businesses by providing insights on patents, trade marks, copyright, trade secrets, internet unfair competition, intellectual property investment, and punitive damages in an accessible Q&A format. It offers readers the latest legal interpretations, case studies, and practical guidance applicable to their operations
To request a full copy, please complete the form through the link here.
Please note due to publishing restrictions we may not be able to fulfil every request. The application will be reviewed, and the report will only be available to corporate organizations. Thank you for your understanding.
Landy Jiang, Managing Partner, Global Co-Deputy Head of Dispute Resolution, Lusheng Law Firm, ljiang@lushenglawyers.com
Li Xin, Senior Associate, Lusheng Law Firm, xli2@lushenglawyers.com
Charlie Liu, Paralegal, Lusheng Law Firm, cliu4@lushenglawyers.com
