This legal update highlights some of the key legal issues for web scraping companies in Nigeria and is based on the lessons from a recent client engagement.
What is Web Scraping?
There are no known statutory or judicial definitions of the term “web scraping” under Nigerian law. However, as a practical matter, web scraping involves the searching and extraction of data from websites often (a) with a view to monetising the data; and (b) without express permission from the owner of the website, from which the data is scraped. Web scraping often involves the automated extraction of data from the web.
A common example of a business that relies on web scraping to provide its services is an airline flight comparison website. In order to provide an online service that allows its customers to get and compare prices and other relevant data about the purchase of airline tickets, an airline flight comparison website may require the services of a web scraping company to scan and scrape the websites of different airlines.
What are some of the legal issues with Web Scraping Nigerian Websites under Nigerian Law?
1.Damages for Breach of Contract
Web scraping companies in Nigeria may have some degree of civil liability as a matter of contract law in Nigeria. For instance, contractual liability may arise where the terms and conditions of a website expressly prohibits web scraping and the commercial use/re-use of any information contained on the website. However, plaintiffs relying on contract law for a claim will have to demonstrate that the relevant terms of use, meets the legal requirements of an enforceable contract under Nigeria’s laws.
2. Damages for Breach of Data Privacy Rights
Web scraping companies may have some degree of civil liability and website owners may have some level of liability under Nigeria’s data privacy laws. Web scraping can also create some level of harm to an individual. For instance, there is a risk that personal data scraped from a website can be used for targeted cyberattacks, unwanted direct marketing, identity fraud as well as the monitoring and profiling of data subjects. There are at least 5 key principles of Nigeria’s data privacy laws that web scraping companies and data controllers ought to bear in mind. Firstly, Nigeria’s data privacy laws allows data subjects to file a civil claim for damages where they can prove some form of harm, injury or loss arising from the activities of a data processor or controller. Secondly, personal data that is publicly accessible is still subject to data protection. Thirdly, web scraping activities can constitute a reportable data breach under Nigerian law. Fourthly, web scraping meets the legal requirements for processing personal data and for that reason, web scraping companies may only process personal data where there is a lawful basis for processing personal data. Fifthly, website owners and social media companies that host publicly accessible personal data have data protection obligations with respect to third-party scraping from their websites.
3. Damages of Tortious Interference
Web scraping companies may be liable under Nigeria’s law of torts. In Nigeria, the tort of trespass to chattels protects all the chattel, goods, or personal properties of a person who has title or possession by prohibiting all interference without legal justification. This area of law protects the rights of a chattel owner to retain ownership, protect the physical condition of the chattel and also protect the chattel against unlawful interference. It is useful to note that trespass to chattel is actionable per se in Nigeria, with the effect that, a plaintiff need not prove damage as a condition for succeeding in a claim premised on trespass to chattel
4. Fines & Imprisonment for Web Scraping Activities
Web scraping companies have some degree of exposure of criminal liability under Nigeria’s Cybercrimes Act (the “Act“). Amongst others, the extant Cybercrimes Act prohibits the interception or modification of data held within a computer system or network without lawful authority. Offenders are potentially liable to fines and prison time. Nigerian courts are yet to determine whether the provisions of the Act applies to only, private information as opposed information that is publicly accessible
5. Intellectual Property Violations
Nigeria does not have a specific statute that recognizes database rights as a separate genre of intellectual property rights. Nonetheless, a violation of copyright under Nigerian law can create some level of civil and criminal liability for web scraping companies in Nigeria. For copyright infringement claims, prospective plaintiffs will have to demonstrate that: (a)the sets of data in question is a literary, artistic, musical, audiovisual work, or constitutes a sound recording or broadcast (b) some effort has been expended on making the data sets in question, so as to give it an original character; and (c) the data set has been fixed in any medium of expression known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device. It is useful to note that a mere collection of data is not eligible for copyright in Nigeria. Given that, web scraping is often only a collection of data, plaintiffs relying on copyright law for a claim, will have to demonstrate that the sets of data in questions meets the legal requirements for a literary, artistic, musical, audiovisual work, sound recording or broadcast, under Nigerian law.
Commentary
It is useful to note that the nature and scope legal liability relating to web scraping is fact-specific. Especially, in a jurisdiction like Nigeria where web scraping issues are novel and untested, a case-by-case analysis will often be necessary to reach a legal conclusion.
The foregoing is not intended to be legal advice. Kindly seek legal advice that is specific to your situation. For further enquiries, kindly reach out to your usual Balogun Harold contact or via support@balogunharold.com
