CALL For PAPERS

The KSLR EU Law Blog hereby invites you to submit abstracts for blog posts on

 any area of EU law

Submissions covering any of the following topics are particularly welcome:

  • The future of the EU: reflections and reforms
  • The Digital and Green transformation of the EU
  • The Constitutional dimension of the EU legal architecture
  • The external dimension of EU policies
  • Protecting and enhancing the rule of law in the EU
  • EU State Aid control & Regulations
  • The Common European Asylum System and the Dublin System
  • The EU Charter of Fundamental Rights and its application at EU and national level

 

We also invite submissions on:

  • Coverage of EU law-related events
  • Reviews of recently published EU law-related books as well as
  • Recent developments of EU case law

 

We are looking for 800 – 2000 words articles.

Please refer to our style guidelines.

Please send abstracts or full articles to:

irene.agnolucci@kcl.ac.uk

simal.erdogan@kcl.ac.uk

by 31 May 2021.

We look forward to hearing from you!

The KSLR EU Law Blog Editorial Team

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EU Travel: The EU’s Package Travel Directive and COVID-19

by Robert Babirad *

 

 

I          Introduction

The unexpected cancellation of a long awaited, pre-paid vacation is nothing to joke about.  Naturally, if this happens and particularly during these turbulent times, the next question is how does one obtain a refund?  Secondly, under what conditions is this even possible and especially given the current global pandemic?  In November 2015, Directive 2015/2302/EU on Package Travel and Linked Travel was enacted. In light of the recent Coronavirus pandemic, guidance was again recently issued on current interpretations of this Directive and particularly with regard to how it will impact today’s travelers within the European Union.

 

II         The Package Travel Directive

The Package Travel Directive aims to enhance the European Union’s internal and single market performance. This is expected to occur through attaining, to the highest degree possible, a “uniform” and “high” degree of protection for EU consumers with regard to those contracts executed between both merchants and travelers and “relating to package travel and linked travel arrangements. The Directive aids in the “approximating” of the various laws pertaining to packaged travel across the EU’s Member States, as well as to particular aspects of their respective regulations, laws and those provisions that govern the administration of this area.

Harmonisation in consumer protection through legal approximation across the EU is the overarching objective of this Directive.

 

III       Cancellations and Refunds

Throughout the European Union, the governments of the Member States have been and continue to be, enacting measures, which have the intended objective of reducing the continued proliferation of the COVID-19 virus. One example is the introduction of the tier system in the UK.  A system of three tiers has been implemented in order to limit an increase in the infection rate. These three tiers range from Tier One at “Medium Alert” to Tier 3, which is classified as a “Very High Alert” area. These labels are based upon where the infection rate is the greatest and contain varying levels of restrictions. An example is that of not being permitted to “socialise in a group” outside publicly with more than six people with whom you regularly reside or whom are not included within your regular “support bubble. These actions have additionally extended beyond border controls and internal, national restrictions, to the overall limiting and restricting of travel both within the EU and from abroad. Travel is regulated on a Member State basis throughout the EU. As a result, the measures that have been enacted in the fight against COVID vary widely based on the country that is implementing them.   In other words, each country within the EU is implementing their own restrictions on where and with how many people you may socialize, testing requirements for the virus, where a mask is required and what an individual has to do if they want to travel to another location within the same country or abroad. At the EU level, it is the Directive on Package Travel and Linked Travel Arrangements that provides overall guidance to those impacted by unexpected cancellations of pre-booked packaged holidays.  This Directive acts as a unified means of providing consumer protection despite the new restrictions and limitations being introduced by the Member States individually at the present time.

Article 12(2) of the Package Travel Directive states that prior to the start or execution of a purchased travel package, the traveler may terminate the contract and receive a full refund, as well as not be responsible for incurring any termination fees, if certain conditions are met. These conditions are namely “unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity,” and which are “significantly affecting the performance of the package,” or those which “significantly affect the carriage of passengers to the destination. The concept of that which “significantly” impacts the “performance of the package” is somewhat ambiguous and seemingly open to varying interpretations.  The definition of significance remains unclear.

However, trips may be cancelled without any penalty to the organiser, where that entity is unable to execute the contract between the person booking the trip and the entity offering the package, and where these “unavoidable” and “extraordinary circumstances” exist. Similar protections exist on the consumer side as well.

 

IV        Undue Delay

It is of interest to note that the Directive also requires that travelers who booked the package be notified promptly and without “undue delay” and prior to “the start of the package” if the organiser cancels the trip. The Directive does not clarify the interpretation of “undue delay” in the notification to the consumer.  Therefore, the scenario is possible where the seller of the travel package already has knowledge of restrictions or limitations that have been or are about to be imposed by a national government, because of the Corona Virus.  Perhaps, in not wanting to lose their profits, the merchant holds off on informing the consumer, with the hope that the restrictions will soon be lifted or invalidated and the package will not need to be cancelled.  How long would constitute “undue delay” in informing the consumer in a scenario such as this?  Unfortunately, the Directive fails to provide meaningful guidance to the consumer in this regard.

 

V         Unavoidable and Extraordinary Circumstances

Article 12(2) of the Package Travel Directive permits travelers to be free of any penalty when cancelling a package trip as well, where the condition of “unavoidable and extraordinary circumstances” is present “at the place of destination or its immediate vicinity. The guidance which has recently been provided in light of the Coronavirus pandemic suggests that these circumstances entail a situation in which the traveler faces that which is beyond their control, and the results of those same circumstances were unable to be prevented by the consumer. This is in spite of taking of all “reasonable measures. The question is then raised as to what “reasonable measures” does the traveler need to take in order to be free of cancellation penalties for their package trip where there are “unavoidable and extraordinary circumstances” present?  It seems obvious that in most cases, there would be nothing that the traveler would be able to do, where, for example, the virus is present in a Member State and travel is otherwise blocked.  However, what situation would require “reasonable measures” to be taken by the consumer and what would those entail for purposes of meeting the criteria under this aspect of the Directive?

 

The information provided is helpful in that it states that COVID-19, another disease, or some other substantial health risk at the intended place of travel in the booking, would satisfy the criteria of constituting situations which are “extraordinary” and “unavoidable. On this, the Directive and the guidance recently provided is clear.  In other words, if the virus is present and travel is being blocked by national authorities upon your arrival in another EU nation, there is nothing more that you can do as a traveler.  This would be a situation considered “extraordinary” and “unavoidable” and there are no further “reasonable measures” in this regard that need to be taken by you.

Additionally, a traveler can employ the use of a national warning related to their travel, as a possibly effective strategy for demonstrating that there has been a circumstance, which is “extraordinary” and “unavoidable” and would justify them or the seller of the package in cancelling the contract, because of the impact on the actual trip’s execution. In other words, a national travel warning could be enough to constitute the “extraordinary” and “unavoidable” criteria necessary for fulfilment of the Directive and obtaining a full refund.

The guidance provided does also state that if the package travel contract cannot be executed, because of the authorities in a Member State prohibiting a certain type of movement or travel, this indeed would meet the criteria of circumstances, which are otherwise considered “extraordinary” and “unavoidable. Limitations enacted by an official authoritative body in a Member State relating to your trip, such as an attraction being closed, are also in all likelihood, qualifying measures that enable a package travel purchase to be effectively cancelled by the operator or the traveler.

 

VI        Significantly Affecting the Package’s Performance

However, there is room for discretion and ambiguity in determining whether the circumstances actually constitute having an impact on the execution of the travel package and to the degree that a court would consider these to be “significant” enough for purposes of the Directive. There is a definite lack of clarity in this regard, and the Directive has in all likelihood been left purposefully vague and ambiguous here in order to allow each national court to make an assessment and interpretation that is specific to the circumstances.  However, although seemingly done intentionally, this wording still leaves a certain degree of confusion on the traveler’s behalf.

Interestingly enough, fear is also not enough for a refund.  If a traveler feels a sense of fear toward going to a destination in their package travel arrangement, this will not be adequate enough for a traveler to cancel their package and receive a full refund.[i]  Instead, there must be a determination based on reasonableness in the context of potential life and health risks with regard to the decision as to whether travel to the place(s) in the contract would merit cancellation and entitle the traveler to a refund. If this situation is found to exist, the traveler or the purveyor of the package retains the right to cancel.

After the contract is cancelled, there will also be a period of fourteen days in which the traveler may receive a refund for their package travel purchase.

Vouchers for taking the trip at a later date may also be issued to travelers in lieu of a refund.  However, there is also a lack of clarity here with regard to the possibility of a refund for a voucher that is not used or cannot be used within the time allotted.  In all likelihood, the voucher itself would be issued under a separate contract with its own terms, conditions and refund policy and therefore not pose a problem under the Directive.  This does not appear to be a cause of concern to the prospective traveler, but there is little guidance regarding vouchers otherwise given in this regard.

It is advised though that travelers should be open to accepting that their packaged tours are postponed until sometime in the future, because of the “strains on liquidity of tour operators,” which has resulted in them being burdened with claims for reimbursement and “missing new bookings. Travelers are encouraged to consider the possibility of accepting these vouchers or “credit note(s),” as long as the possibility remains of a full refund if the voucher is not ultimately used. The universal “uncertainty” surrounding travel arrangements is acknowledged and vouchers are offered as a potential option with the final possibility of a refund if needed by the traveler.

 

VII      Traveler Assistance

The operator of a booked tour is required to provide travelers with assistance if they encounter blocks while on their trip and outside of their own respective Member State. This is particularly relevant given the rapidity of the changing situation regarding restrictions, quarantine and other limitations being imposed on a day to day basis under the current global pandemic.  Health service information, as well as information regarding consular and help from regional authorities must be provided by the operator of the tour, to a traveler encountering challenges on their trip.

If a traveler is unable to return from their packaged tour, because of circumstances which are “unavoidable” and “extraordinary,” the operator of the tour has additional responsibilities. They must pay for the stranded traveler’s accommodation for up to three nights where the traveler’s transport back home was included in the pre-purchased travel package’s cost.

If the authorities in a locale that one travels to require the traveler to go under quarantine, and as a result, that individual does not make their flight back home, there are options. The national rules of the respective Member State in question, with regard to the quarantine, may enable the traveler to make a claim for repatriation and greater accommodation costs.

 

VIII    Conclusion

 The recent guidance is helpful regarding when a traveler with a pre-booked package trip may seek a full refund under EU law.  This is especially useful in light of the current global pandemic.  However, there are still vagaries that remain leaving a degree of uncertainty as to whether a consumer is eligible for a full refund of their trip from a vendor with regard to EU law.  This is particularly true with regard to “unavoidable and extraordinary circumstances” under the Directive, as well as with regard to the consumer’s responsibility to take preventative measures, which are considered reasonable.  Additionally, a travel package’s performance being “significantly” impacted remains open to varying interpretations.  Finally, the “undue delay” responsibility on the part of the vendor of the package emerges as clear and uncertain with regard to consumer protection and their respective rights under the Directive.  In summary, there are positive aspects of the Package Travel Directive and its unified approach across the Member States, particularly with regard to the current Coronavirus pandemic.  However, there are aspects under the Directive that even with the current guidance, which has been provided, remain uncertain and vague for consumes of travel packages within the European Union.

 

*  Robert Babirad holds a Masters in European Union Law from King’s College London and is the author of an upcoming, non-fiction travel memoir titled: In-Transit Passenger: Making the Journey Matter coming out in the Spring of 2021.

Call for Papers – Doctoral Workshop at the University of Bologna

The Department of Legal Studies and the PhD Programme in European Law of the University of Bologna organize a Doctoral workshop, under the direction of Prof. Federico Casolari, on the topic:

The extraterritorial application of EU law: 

A contribution to its global reach

Bologna, 18-19 March 2021

Venue: Department of Legal Studies – Malvezzi Building – via Zamboni 22 – 40126 Bologna

Organised in cooperation with:

  • Prof. Christine Kaddous (Université de Genève),
  • Prof. Ramses Wessel (University of Groningen),
  • Prof. Enzo Cannizzaro (University of Rome “La Sapienza”),
  • Prof. Sara Poli (University of Pisa),
  • Prof. Jan Wouters (KU Leuven).

 

Background

The scope of application of EU law represents a major element of the legal discourse concerning the affirmation and strengthening of the European integration process. It firstly influences the way in which that law interacts with the municipal law of the Member States. More and more, however, the relevance of the scope of EU law goes beyond the interplay with Member States’ legal orders, contributing thus to the global reach of EU law.

In this respect, a crucial role is played by the extraterritorial application of EU law. Thanks to the growing web of contractual relations put in place by the European Union with third countries and other international organisations, the widening of the Union’s competences – also in the light of the recent crises the EU and its Member States have faced – and the doctrines elaborated by the case law of the European Court of Justice (such as the ‘effects doctrine’ invoked with regard to EU competition law), the possibility to apply EU law outside the Union’s borders is a reality representing a pillar of the EU external dimension.

Against this background, the Workshop seeks to realize a general reflection on the extraterritorial application of EU law, by stressing its legal implications for the EU external action and the EU legal order as a whole.

                                                                                                                    ***

Link to the Call for Papers. Deadline: 30th November 2020. 

The exploitation of Sports Media Rights: Whether EU Intervention strikes a balance between IP Protection and Competition in the market?

by Mohit Agarwal*

 

While Sports events generally do not attract protection under copyright or neighbouring rights of European Union Law, it does not imply that copyright and related rights have no significance in protecting the commercial interest of the sport organisers. The sport organising entities hold the right to broadcast the events through the mediums of wire or cable as granted under the Copyright Directive of 2001. It is a general practice to license such broadcasting rights to entities that professionally operate in the field on basis of contractual agreements.

This article aims to explain how sports media rights are managed and licensed by sport organisers and the compatibility of such licensing practices with EU Competition Law. The joint selling of sports media rights, territorially restrictive clauses in distribution and broadcasting licenses, and the problem of unauthorised/illegal live streaming will be addressed.

Nowadays, joint selling, as against individual selling, is how sports media rights are mainly marketed. Joint selling is an arrangement whereby the clubs entrust their media rights to their national or international sports organiser which collectively sells them on their behalf. While scrutinising the license agreements, the European Commission in its Decision 2003/778 (UEFA) held that joint selling agreements create efficiency gains and may be covered by the exception provided in Article 101(3) of the TFEU.

It was observed that joint selling acts as a single point of sale which is significantly more efficient, reducing the acquisition and transaction costs as against an individual sale of media rights by the teams/clubs. Negotiating with multiple teams/clubs to establish the same end product would mean high transaction complexities and costs for the broadcasters. A single sale outlet not only benefits the organisers, but also the licensee, who have certainty with regard to predictable commercial and programming plan for the whole season, reducing its financial risk considerably.

However, some commentators are in favour of regulatory intervention as joint selling may enable the teams/clubs to act as a cartel and thus restrict competition. Consolidation through collective selling grants the organiser, the market power to dictate the terms of the license, which may lead to inaccurate inflation in both upstream and downstream to the final consumers. The supply side substitutability in such a licensing agreement is zero or perfectly inelastic which creates an inequality in the balance of bargaining power. The licensee is markedly at a weaker bargaining position eliminating the freedom to negotiate the terms of the agreement.

The Commission’s decisions, however, declared joint selling of sports media rights compatible under EU Competition Rules, provided that strict conditions are respected. In some cases, an exception to joint selling is the ‘no single buyer obligation’. It is an intensified approach requiring that all packages of the valuable media rights are not sold to a dominant player in the downstream market. It was first implemented in the FAPL case and has being increasingly implemented in other national leagues. This obligation is considered an exceptional measure, justified when either at the time of licensing, a serious foreclosure risk already exists in the downstream market or when selling the rights to a single buyer would lead to securing a dominant position beyond the contractual period.

The Court of Justice in the Premier League v. QC Leisure held that a contractual provision aimed at reinforcing territorial scope (absolute territorial protection) of a license to a single Member State restricts competition under Article 101(1) TFEU. The Court held that such territorial exclusivity results in creation of artificial prices and in partitioning of the EU Internal Market which is against the very core of EU Law. Article 7 of the Portability Regulation makes any contractual provision prohibiting cross border portability of online content services unenforceable.

A restriction on passive sales is treated as a by object restriction which means that it infringes the Competition rules, without needing to demonstrate actual anti-competitive effects. Absolute territorial exclusivity restricts both active and passive out-of-territory sales, thereby partitioning the EU Internal Market and are prima facie violative of Competition rules.

However, sports organisers may disagree on this point, as they believe that territorial exclusivity in licensing of media rights is vital to maximise their return on investment by selling them in different territories. Territorial exclusivity grants the organisers, the opportunity to sell the licensing rights at different prices in different territories. For instance, if consumers’ willingness to pay for a certain product is positively correlated with their income, affluent consumers will be willing to pay more for the same product. Hence, a combination of territorial exclusivity and price discrimination becomes allocatively efficient. Price discrimination will increase the organisers profit, reduce the surplus of richer consumers and increase the surplus of relatively poorer consumers, maximising social welfare.

In recent years, a substantial increase of pirated and illegal live streaming of professional sports has resulted in considerable reduction of pay television broadcasting. Given the fact that it requires a sizeable investment to obtain such broadcasting licenses, unauthorised streaming enables such illegitimate hosts to free ride on authorised broadcaster’s rights. Such pirated streaming sites earn through click-advertisements.

The European Court of Justice interpreted Article 3(1) of the Copyright Directive in the TVCatchup case confirming that any unauthorised retransmission, through wire or wireless, is an infringement of the neighbouring right, granting the right-holders a right to damages and injunctive relief. While such an infringement gives rise to an action for relief and damages, the existing legal tools are ineffective in protecting right-holders from unauthorised rebroadcasting (parallel broadcasting) especially online of live matches.

The unauthorised dissemination of content and information, usually online, is a major roadblock for the content industry such as movies, music, sport broadcasting, etc. However, a legal remedy that can effectively block the availability of pirated music or videos, it is deemed inadequate for illegal broadcasting of sports events. A sport event is of highly perishable and volatile value as compared to other traditional content and information. This is because the transmitted content is time sensitive as the value of the broadcast tends to be zero after the end of live transmission. Therefore, it requires differential treatment from other sectors.

Interestingly, the Irish Commercial Court has granted a first of its kind remedy and compelled internet service providers (ISPs) to block illegal transmission of matches of Premier League in real time. Latest advance technology will be used to possibly block streams across different platform in one blow. The judge held that such unauthorised streaming undermines the value of FA’s rights and if allowed to exist, may cause an impact on wider sporting community.

Another remedy that can potentially end the illegal streaming is to target the advertising revenue of such websites. Blocking of such advertisement and other associated revenues, the business models can be halted. It remains to be analysed the effectiveness of such remedy.

In conclusion, competition authorities play a cardinal role in the sports sector, more importantly, in sale of broadcasting rights. While there are different protection regimes across the EU, sports organisers can rely on EU law. However, the Commission still needs to develop an immediate and effective enforcement remedies that suit the sports sector.

 

*About the author

Mohit Agarwal is an Undergraduate Student at Gujarat National Law University, Gandhinagar. He possesses a keen interest in Competition Law & Policy and is an Editor at GNLU Journal of Law and Economics Blog.

Can Legitimate Interests Ground Justify Web-Scraping of Personal Data for Direct Marketing Purposes under the GDPR?

by Ali Talip Pınarbaşı, LLM

 

WHAT IS DIRECT MARKETING? HOW IS WEB-SCRAPING USED FOR DIRECT MARKETING?

 

As grabbing the attention of the customers became harder by  digital advertising, reaching out to customers directly has become more vital for businesses. Examples of such  direct communication includes cold-calling, cold-emailing, postal mail and point of sale marketing. All these methods constitute direct marketing.

The distinguishing feature of direct marketing is that the prospective customer does not initiate a communication; the first step is taken by the seller and the seller usually calls on the customer to take a certain action such as subscribing to newsletters or making a purchase.

Every direct marketing campaign, be it via email marketing or telemarketing, requires access to vast amounts of contact data of customers such as e-mails and phone numbers.

However, such contact data does not magically appear on the databases of the marketers, so they need to extract such data from various sources including websites and online directories.

This is where the web-scraping methods come into play: web-scraping is a technology used to extract the contact details of individuals from websites and online directories. Following the extraction of these data, the marketers then contact individuals to promote their products/services.

For example, an insurance company may want to advertise its new car insurance product to people who have been in car accidents before. To send e-mails or make calls to those people, the insurance company will have to collect the contact details of these individuals. This company can use web-scraping technology to collect their contact details.

 

LEGITIMATE INTERESTS CAN BE THE LEGAL BASIS FOR SCRAPING OF PERSONAL DATA FROM THE WEB FOR DIRECT MARKETING PURPOSES

When the data-controller extracts personal data from the websites or directories, it is likely that she does not have the consent of the data subjects. Therefore, data controllers must justify their scraping activity under another lawful basis for processing of personal data, which will inevitably be the ‘legitimate interests’ basis.

However, it is quite common to come across an article on the internet which posits that GDPR completely prohibited web-scraping and unless there is consent, the processing is unlawful and will lead to hefty fines.

One recent example supporting this prevalent view is French Data Protection Authority’s(CNIL) guidance which rejected the possibility that legitimate interests can justify scraping of personal data. The reasoning behind this position is that data subjects do not expect to receive direct marketing communications from a third-party data controller when they share their personal data with a data controller.

In other words, the Guidance rejects the reliance on legitimate interests ground to justify we-scraping based on one single criteria: the expectations of the data subject.

However, as will be explained below, legitimate interests assessment cannot be reduced to a single determining criteria because it requires taking into account all factors and circumstances.

The following reasons demonstrate why the legitimate interests ground can be used to justify web-scraping.

 

  1. Scraping of personal data from the web is a separate processing activity subject to GDPR and it is distinct from the direct marketing activity itself.

 

Consider a data controller who scrapes personal data from the web and then use this data for direct marketing purposes such as sending cold e-mails to individuals. In this scenario, both the scraping activity and cold e-mailing are two separate processing activities subject to GDPR, and both have the same purpose: direct marketing.

As the scraping of personal data is done for direct marketing purposes, GDPR’s rules for processing of personal data for direct marketing purposes should apply to this scraping activity.

Recital 47 of GDPR states that “[t]he processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.”

Considering the GDPR’s approach, rejecting the reliance on legitimate interest ground to justify web-scraping for direct-marketing purposes seems like a bizarre result which does not align with the wording of GDPR.

 

  1. Data controller has the discretion to conduct legitimate interest analysis to justify web-scraping, GDPR does not categorically exclude web-scraping of personal data.

 

Stating that the web-scraping can only be justified on the basis of consent makes web-scraping activities completely illegal under the GDPR, as the consent is almost practically impossible to obtain in web-scraping activities. In other words, rejecting the reliance on legitimate interests means prohibiting a data processing activity that the GDPR did not prohibit.

To the contrary, GDPR explicitly states that processing of personal data for direct marketing purposes can be lawful based on legitimate interests. If the purpose of a web-scraping activity is direct marketing, then it does not make sense to say that consent can be the only lawful basis to justify the scraping activity.

Therefore, the data controller should be able to rely on legitimate interests basis to justify its web-scraping activity.

This of course does not guarantee that the web-scraping activity will be considered lawful in every circumstance. Web-scraping activity can still be unlawful if the conditions for legitimate interests are not satisfied.

Since we established that legitimate interests can justify web-scraping, now let’s look at how it would be applied in practice.

 

APPLYING THE LEGITIMATE INTERESTS TEST TO WEB-SCRAPING FOR DIRECT MARKETING

Legitimate interests test requires a balancing exercise where the interests of the data controller will be weighed against the rights and freedoms of the data subjects. While doing this balancing exercise, all factors and circumstances should be taken into account.

This balancing exercise can be exercised by applying a three-step test:

  1. What are the legitimate interests of the data controller ?

In such a competitive business environment, reaching out to potential customers to promote  its products and services are vital for every business.  Therefore, collecting the contact details of individuals to contact them for direct marketing purposes serves the commercial interests of the data controller. Two examples can be given for these commercial interests.

Firstly, web-scraping for direct marketing purposes cost far less compared to traditional marketing methods or running ads on digital media platforms. This is particularly true for small and medium-sized businesses which have a very limited marketing budget and have difficulties in reaching their target customers.

Secondly, web-scraping can be effective in finding a specific group of customers who might be more likely to engage with the business. For instance, web-scraping can help the business market its products/services to a particular group of people who belong a certain age group or who live in a specific region.

  1. Is web-scraping necessary?

This step require investigation into whether there are less intrusive ways to achieve the goal of marketing.

This will vary depending on the particular industry in which the business operates and the availability of other methods to reach customers as well as the impact on the privacy of the data subject.

For instance, if the data controller is planning to promote its farming equipment to farmers by cold e-mail or cold calling after scraping their contact information, this may pass the necessity test because this may be the most convenient way to reach the customer. This may be because it is almost impossible to reach the farmers on traditional media outlets or by running ads on digital platforms.

  1. Does individual’s interest override the interest of the data controller ?

This step requires a balancing exercise between the two sides. Following factors should be considered in this weighing exercise:

-If the potential privacy impact of the web-scraping on the individual is high, this may tip the balance in favor of unlawfulness of the web-scraping,

-Sensitive character of data,

-Reasonable expectations of the customer,

-Degree of intrusion of the processing.

Depending on the specific circumstances of the case, the result of the balancing exercise will differ.

For instance, let’s imagine two different scenarios where the personal data are scraped from the web for direct marketing purposes.

Scenario 1: Company A scrapes the e-mail addresses of thousands of high school students to promote its math course materials to them via cold emailing. However, it takes appropriate security measures on the data such as encryption and pseudonymization and does not share this data with third parties. Furthermore, it does not send spammy e-mails to each person, but it only selects a small number of relevant students to promote its products.

Scenario 2: Company does the same scraping activity as company A, but it does not apply the relevant security measures and shares the scraped data with third parties.

Comparing these two scenarios, it is crystal-clear that the privacy impact of the A’s scraping activity is almost minimal on individuals whereas the B’s scraping is likely to expose the personal data of the data subject to high-risk.

As can be seen, every web-scraping for direct marketing purposes has different implications on individuals and justifying them on the basis of legitimate interests requires a case-by-case analysis.

CONCLUSION

Legitimate interests ground can justify web-scraping of personal data for direct marketing.

While doing the legitimate interests analysis, all factors and circumstances should be taken into account such as privacy impact on the individual, commercial interests of the web-data controller and necessity of web-scraping instead of just focusing on one criteria such as expectations of individuals.

 

About the author

Ali Talip Pınarbaşı is a Legal Consultant based in Istanbul. He provides legal consultancy services on IP Law and Data Protection Law. He completed his LLM Degree in King’s College London, specializing in IP&IT Law.