Website scraping, which is the bulk extraction of website information by software, is becoming an increasingly visible activity. The Lovely-Faces controversy shows how scraped information can disrupt a sense of privacy when re-published in a different context. The Lovely-Faces website, deemed “a social experiment” by its creators, re-contextualizes names, locations, and photos scraped from publicly accessible Facebook pages in a mock dating website. This controversy serves as a good example of how the fine print in online legal agreements can sometimes protect website users. The controversy presents a great opportunity to examine whether a social network site’s anti-scraping terms are as beneficial to users as the website itself.
For the sake of argument, let’s assume that Lovely-Faces is bound by Facebook’s terms. Facebook would then have a claim for breach of contract. But what about the Facebook users whose profiles were lifted? These users have no contract with Lovely-Faces, and the traditional school of thought is that they are largely without recourse. Although Lovely-Faces has explicitly and unequivocally offered to remove the profile of anyone who requests it, other websites might not be so generous.
While Facebook users would likely be unsuccessful with a breach of contract claim here, I think it is worth analyzing the intent behind these restrictions and determining the benefit conferred by these terms. A website’s gift of the right to enforce restrictions on scraping could be a selling point in attracting privacy conscious users. Could this be a way for start-ups to compete on user privacy?