Legalities of Job Scraping

Anecdotal evidence suggests that the number of Online Recruiters being hit by the practice of Job Scraping has reached an all time high. Now, more than ever, the industry needs to appreciate what the practice of ëjob scrapingí constitutes and the legal issues involved.

What is Job Scraping?
It is the practice of some Job Boards to web crawl the internet to lift data about vacancies posted by other Job Boards and employers and to post this information on their own website.

What types of Job Scraping are there?
The practice of Job Scraping takes two forms. One of which may be called ëHardí Job Scraping and the other of which we may call ëSoftí Job Scraping.

Soft Job Scraping is when the data that is published on the website of the Job Scraper gives brief information about the job and this is accompanied with a link to the specific information on the original website.

Hard Job Scraping is something quite different, this is when the job scraper directly copies the relevant material and therefore purports to be the originating website. Often this is simply a ruse to collect candidate data, which is then used for other purposes and it not transmitted to the employer.

How does this affect the Online Recruitment industry?
Soft Job Scraping has both advantages and disadvantages for the industry. On the positive side a Job Board may find that this generates more web hits for the site, ensuring that it gets a reputation for helping fill vacancies quicker, and of course enabling it to earn more advertising revenue.

Employers may find that they can benefit from cost savings by effectively getting their own vacancies advertised on Job Boards for free. Candidates can also benefit if the development of Super Job Boards, allowing a single point of access to very many jobs, allows them to have time savings in their search for work.

On the downside some Job Boards may find their revenues are hit by free advertising. Likewise a niche Job Board, that prides itself upon only attracting interest from candidates with specific expertise, might find its niche reputation is damaged if links from generalist job boards are resulting in inappropriate applications to its clients.

Hard Job Scraping is unequivocally damaging to the online recruitment industry.

Legality
Job Scraping, in both its ëHardí and ëSoftí varieties, would appear to breach a number of provisions of law. In particular it is worth noting:

Conduct Regulations
The Conduct of Employment Agencies & Employment Businesses Regulations 2003 (the ëconduct regulationsí) say that an agency (and this includes Job Boards) cannot advertise a position unless they have they have the authority of the employer to advertise the position. This means that unless the Job Scraper themselves has the authority of the employer they cannot advertise the vacancy; this authority does not exist simply because the job is advertised elsewhere.

The agency is required to keep records proving that it has the authority to advertise each vacancy. If the agency cannot provide proof of this authority then they could be prosecuted.

Database Rights
The EU Database Directive and The Copyright and Rights in Databases Regulations 1997 gives a party who has invested a significant cost in compiling or verifying a database a ëdatabase rightí and this right prevents third parties from extracting or using the data without permission. Job Boards are likely to qualify for database rights, having made a significant investment in the presentation and verification of the data upon their website.

Hard Job Scraping will clearly breach database rights as the transferring of a substantial part of the contents of a protected database onto another medium will infringe a database rights. An aggrieved party could seek damages or an injunction to prevent future use of the data.

It would appear likely that unauthorised Soft Job Scraping will also result in an infringement of database rights. This is because there is an arguable case that a website with deep links to data held on another partyís website is effectively making use of their database. It is yet to be seen how the UK Courts will interpret this legislation although the German Courts, in the case of Stepstone v OfiR, have said that unauthorised deep linking to a Job Boards database infringes the database rights of the Job Board and the German Courts have granted an injunction to prevent this from happening.

Hard Job Scraping is, in addition, likely to constitute a breach of The Copyrights Designs & Patents Act 1988 and the Data Protection Act 1998, as well as more generally constituting fraudulent activity.

What can be done?
Online Recruiters who feel that there interests are being prejudiced by Job Scraping can take active steps to prevent this from happening. Robots can be inserted into the website directing the job scrapers not to deep link to the website. Most Soft Job scrapers will obey such instructions. If the Job Scraping persists Online Recruiters can rest assured that, as outlined above, the law provides for means by which an injunction and damages can be sought.

For further information contact Gareth Williams

Telephone 0870 043 4361
Email agency@pennlegal.co.uk