If there is no definition of commercial use – which in fact is often the case – things get complicated. There are more questions than answers, which essentially means that there is greater legal uncertainty and much more difficult to profile likely risk. Use by an individual in a domestic setting or use by a public body for non-profit purposes might be less likely to be considered “commercial use” by a website operator. However, should activities that merely relate to a commercial entity but have no tangible financial benefit (i.e. revenue and profit) be considered “commercial use”? What if these activities produce an indirect financial gain or a commercial advantage that cannot be reduced to a monetary value? To what extent should “commercial use” be interpreted? In the majority of use cases, the only time these questions would be definitively answered is by a judge once the case has been argued and the risk has already materialized.
This sometimes makes those crawling and collecting data feel like they’re taking a step back, mitigating risk as much as possible – for example, by avoiding scraping websites that require positive acceptance or terms of ” click” – and hoping that all residual legal risk will not lead to execution by the website operator. In a world where data is increasingly recognized and realized as a valuable asset, the likelihood of enforcement action remains a significant possibility.
…should activities that merely relate to a commercial entity but have no tangible financial benefit (i.e. revenue and profits) be considered “commercial use”? What if these activities produce an indirect financial gain or a commercial advantage that cannot be reduced to a monetary value? To what extent should “commercial use” be interpreted?