Internet companies’ data right based on investment in maintenance, data security
Lawyer warns data protectionism may lead to a divided internet, harming public interests
A March 8 injunction issued against web-crawling firm Kuaiyi Technology by China’s Hangzhou Railway Transport Court has defined internet companies’ right to user-generated data, several competition lawyers told PaRR.
The injunction, sought by Tencent, ordered Kuaiyi Technology to immediately stop providing four products that were based on WeChat data and obtained via the web-crawling technique, including 'Official WeChat account article information application programming interface (API)'; ‘WeChat subscription accounts and latest articles API'; 'Tencent rolling news API'; and 'Official WeChat accounts and corporate identication information within the administrative region', as reported.
Data crawling refers to the collection of data from websites using bots, or autonomous systems on the internet. Focused web crawling refers to information gathering on a specific topic or from a specific website, and a general-purpose web crawler does not have specific targets. A search engine is a typical example of general-purpose web crawler.
The injunction in effect protected Tencent’s right to content published by users on WeChat’s public accounts, Bowen Jing, partner at Guo Biao Law Firm, told PaRR. Jing added that the court’s recognition of internet service providers’ right to usergenerated data is an “innovative judicial decision”.
With the development of big data and articial intelligence, the number of data-related internet-focused unfair competition lawsuits are going to increase, Jing said. And as the range of legal protection over data rights has expanded and become more diverse, requests for injunctions are going to become more prevalent, he added.
Data crawling bots often create a large volume of traffic and block normal user visits, Gang Fu, senior partner at Co-effort Law Firm, told PaRR. Fu added that it is a “positive shift” that the court has recognized the burden caused by data crawling on internet companies’ daily maintenance and data security.
In addition, focused web crawling used by Kuaiyi Technology in the instant case only beneted a small number of people – the data collector, buyers, and analysts – rather than the general public, Fu said.
As Kuaiyi Technology violated WeChat’s robots exclusion protocol and scrapped data for commercial purposes without generating common interests, it is hard to justify its legitimacy, Fu said. The robots exclusion protocol is a standard used by websites to inform web crawlers which areas of the website should not be accessed or scanned.
However, as many internet giants adopt an isolationist strategy in terms of data rights protection, which strictly bans web crawlers’access, it may result in a divided internet and endanger the public interest, Chambers Yang, senior partner at Dentons told PaRR.
Currently, mainstream search engines in China cannot access WeChat public accounts, which have become an important platform for “we-media”, as media published by individual citizens is known, and users have to switch among platforms to search for information, Yang added.
Legislative efforts are required to better regulate internet companies' data policy, Yang said. Before that comes, however, courts are expected to balance the interests of corporates and the public when dealing with data-related competition lawsuits, Yang said.
by Kimberly Jin in Shanghai
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杨春宝一级律师简介
杨春宝一级律师,大成上海高级合伙人、资本市场部主任、国资基金研究中心主任,大成中国区私募基金专业带头人、科技与文化法律研究中心联合牵头人。执业30余年,长期从事私募基金、投融资、并购重组法律服务,尤其对对赌研究颇深且具有非常丰富的实战经验,并专注于金融机构股权投资业务。2004年起多次入选The Legal 500"私募基金"和"公司与商业"等境内外各类律师榜单,代理的中国法院首例适用外国法律审理外国公司的董事损害小股东权益纠纷案入选上海高院发布的《上海法院域外法查明典型案例》和威科先行"要案头条"。入选上海涉外法律人才库、上海市司法局鼎新法治人才库、上海国有企业改制法律顾问团,具有上市公司独立董事任职资格,系多家知名高校的兼职教授或兼职研究生导师及上海市商务委跨国经营人才培训班讲师。出版《私募股权投资基金风险防控操作实务》等16本投融资法律专著。了解更多常见法律问题
该禁令保护了哪类数据权利?
保护了互联网公司对用户生成内容的数据权利,基于其数据维护和安全投资,禁止爬虫公司未经许可爬取数据。
爬虫协议在案件中起什么作用?
爬虫协议(robots exclusion protocol)用于告知爬虫禁止访问的网站区域。快易科技违反微信的爬虫协议,被认定为不正当竞争。
数据保护主义可能带来什么风险?
可能导致互联网分裂,如主流搜索引擎无法访问微信公号内容,用户需切换平台搜索信息,损害公共利益和信息获取便利性。
以上内容仅供参考,不构成法律意见。如需专业法律服务,请联系杨春宝一级律师:chambers.yang@dentons.cn




