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Wednesday, 25 December 2013

CJEU takes foot off the GasPedaal, then puts the boot in

Case C‑202/12, Innoweb BV v Wegener ICT Media BV, Wegener Mediaventions BV, is a ruling from the Fifth Chamber of the Court of Justice of the European Union (CJEU) last Thursday, 19 December, following a request for a preliminary ruling by the Gerechtshof te ‘s‑Gravenhage (The Hague Regional Court, The Netherlands). This case has been noted on the IPKat weblog here; a media release has also been received from Joris van Manen (a partner in the Amsterdam office of law firm Hoyng Monegier, which acted for AutoTrack in these proceedings). According to Joris:
"In a landmark ruling, Europe’s highest court:, the CJEU, banned so called 'dedicated meta search engines'.

Gaspedaal.nl [this appears to be the Dutch word for 'accelerator'], a venture of Dutch publisher De Telegraaf, is a dedicated meta search engine that searches through used car advertisements on a number of different Dutch used car websites such as AutoTrack.nl, AutoTrader.nl and AutoScout24.nl. If the Gaspedaal user searches for a particular type of car GasPedaal translates the query into the format of the search engine of these websites. GasPedaal then retrieves data directly, i.e. in "real time", from these websites and displays the combined search results in its own layout to the user. Every day GasPedaal carries out approximately 100,000 searches on the AutoTrack website in response to queries.

AutoTrack, a venture of Dutch/Belgian publisher De Persgroep, filed a lawsuit in 2008 before the District Court of The Hague. The Court banned the "scraping" of AutoTrack because GasPedaal infringed the database rights of AutoTrack. De Telegraaf appealed the judgment and the Hague Court of Appeal referred nine "questions of interpretation" to the Court of Justice in Luxembourg.

In its judgment the CJEU held that GasPedaal’s dedicated meta search infringes Wegener’s database rights as it deprives AutoTrack of its revenues. The court ruled:
“As the end user no longer has any need to proceed via the database site’s homepage and search form, it is possible that the maker of that database will generate less income from the advertising displayed on that homepage or on the search form, especially to the extent that it might seem more profitable for operators wishing to place advertisements online to do so on the website of the dedicated meta search engine, rather than on one of the database sites covered by that meta engine.

As regards, furthermore, database sites displaying advertising, sellers – aware that, with the dedicated meta search engine, searches will be made simultaneously in several databases and duplications displayed – may start placing their advertisements on only one database site at a time, so that the database sites would become less extensive and therefore less attractive.”
According to the court, this practice “comes close to the manufacture of a parasitical competing product.” Thus GasPedaal “re-utilizes” the whole or a substantial part of AutoTrack’s database and hence infringes AutoTrack’s database rights.

The case will now return to the Hague Court of Appeal, which is expected to render its final judgment at some point in the summer.

Van Manen comments: 
"This ruling of the highest EU court is of the utmost importance for the digital publishing industry. It is a strong incentive to develop quality data products without having to fear that these products will immediately be parasited. It again is an important step in the maturation of the internet”.
The ruling of the CJEU is actually quite detailed and fact-specific, so anyone seeking to venture into the attractive territory of meta search should check the judgment out carefully before deciding to give up.

This ruling also illuminates something of greater importance than the decision itself.  According to this media release, the initial action to restrain Innoweb was commenced in 2008.  The dispute has so far gone only as far as trials before a first instance court and an appellate chamber, followed by a reference to the CJEU for a preliminary ruling.  Now it must go back to the Hague Court of Appeal, with the prospect of the decision of that court itself being subject to a further appeal.

It seems to this blogger that, in the digital age, it is absolutely intolerable and unacceptable that a dispute over any aspect of digital communications and internet use should be allowed to take so long.  If some sort of fast-track, rapid response service from the CJEU is not to be made available, the very fact that a reference for a preliminary ruling will delay national proceedings by two to three years becomes a potent weapon in the hands of trial lawyers and also offers a bonus prize for those who make the effort to conjure up the most obscure and remote uncertainties of EU law in order to earn for their clients a valuable lacuna in the litigation process.

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