Dutch Case Says Email Harvesting Illegal

leomekenkamp writes "According to the /. readers there is probably something good as well as something bad in what a Dutch judge had to say in the case of E-mailgids versus NTS: NTS was convicted of illegally harvesting e-mail addresses for spam purposes from the e-mailgids site. According to the judge NTS was guilty because they did not act according to the terms of usage that are on the e-mailgids site, but were bound to them, even though they did not specifically have to click an 'I agree'; the terms of use are clearly mentioned on the main index page, and that was enough for the judge. Unfortunately all links are in Dutch..."

Comments

Dangerous Precedent

[Alethes]

but were bound to them, even though they did not specifically have to click an 'I agree'

How many of you would like to be bound to an EULA even if you didn't click an 'I agree'?

Re:Dangerous Precedent

[henrik]

Depends on if that is how the legal system works in the Netherlands. I know in the USA you build your legal system on precedents, each case affecting all future cases. In Sweden, not so; everything not mentioned as illegal in the criminal code is legal. You also can't change the criminal code to affect current cases if you notice you missed something.

Civil code is another matter of course, but still be careful not think of the dutch legal system as something exactly the same as the american one.

Anyone know how the legal system in the Netherlands handles precedents?

Re:Dangerous Precedent

[Wonda]

it handles those the american way, however that's not the whole story. the court actually looks at what seems reasonable (to the dutch court) for the situation, so if you are going to use information on a website for commercial activities, you ask if you are allowed first (and would have found the EULA).

where for those click through EULAs they might well rule that since everyone knows you get nowhere without clicking on i agree, so it is reasonable that you didn't actually read it! (hasn't been in court yey afaik)

Re:Dangerous Precedent

[Martin S.]

How many of you would like to be bound to an EULA even if you didn't click an 'I agree'?

This comment is miss-representative, it is not comparable; If this was not moderated as interesting I would have labled it a troll and moved on. However; somebody using an email harvester has deliberately and wilfully circumventing typical and widely known terms of service.

This would be the same as somebody using an automated script to accept a EULA for them; or installing from an image rather than the official installer programme and thereby circumvented an 'I agree' click-through. Then ignoring the terms of the EULA and stating then never saw or accepted them; and therefore are not bound by them. That is a ludicrous suggestion.

There's nothing bad on e-mail harvestring

[yeti (dn)]

I don't understand Dutch, but...

Only certain usage of the harvested emails may be bad. I did what can be called e-mail harvesting too and yet I haven't sent a single spam and I'm not going to send any -- I did it for statistical purpose. I don't like being called criminal. Unfortunately this world became legalistic and have lost the sense of good and bad. Intention doesn't matter. Only what's written on some WWW page with an Accept button.

BTW, no one gathers the e-mails manually. When I write an e-mail harvesting bot, it not only doesn't click on any Accept buttons, but have no intention of accepting some conditions at all. And I, its author, don't know what agreements the sites the bot finds may contain. I can only make it obey Internet protocols, robots.txt and so on.

So, is Google illegal too, when it crawls the Web without obeying conditions written on some WWW page with an Accept button?

Dutch?

[one9nine]

"Unfortunately all links are in Dutch..."

The links are in Dutch. Ishint dat weird?

My email address wasn't harvested because I lost it in a shmelting accident.

What's good about this?

[Tom7]

I don't think there's anything good about this. What if the next they rule it's illegal to to download an entire site for off-line browsing, or to crawl a web site to create an index of it? What if you were harvesting e-mails for a scientific study? This kind of regulation of technology is negative, and I'm thankful it didn't happen in the US. I guess the primary issue in this case was a "breach of contract" rather than something fundamental about e-mail address harvesting, but it's scary to see that kind of enthusiasm in a slashdot headline. (Who else cares about on-line freedoms?)

In this case I would have much rather seen e-mailgids just deploy technological solution to make it difficult for NTS to harvest e-mails. Seriously, as annoying as spam may be, it's not as annoying as losing my freedom on the internet. Be careful what you wish for!

Re:What's good about this?

[leomekenkamp]

I certainly understand your line of reasoning since you are a US citizen. Here in The Netherlands judges have a different way of looking at law than where you come from, especially regarding contracts (IANAL, but IHSFWSL (I have some friends who studied law). In this case for instance, the judge found it perfectly acceptable that e-mailgids put the 'do not abuse our email addresses, they are for personal use only' clause in. That same judge would have probably whiped the floor with a 'you are not allowed to copy anything of our site' clause. Why? Because it is rediculous, and a judge over here knows it.

conditions

[jo-do-cus]

for your information: all links are in dutch, but on the site of the e-mailgids you can find the conditions for use in english. I guess that the judge made his decision because it is very evident that the service provided by this site is not meant for harvesting & spam, and what is more, this it mentioned in the conditions. Furthermore, it reads above the search box "Door in de gids te zoeken stemt u in met de voorwaarden", which translates to something like "by searching our database you agree with the conditions of use". So i guess the judge has a point here...

Without reading, hard to say

[bwt]

I'm always skeptical about 2nd hand interpretations of judicial decisions. At face value, this sounds bad, because it appears to find you are bound by the terms of a Clickwrap contract even if you don't explicitly agree to it.

On the other hand, if this case basically held that abiding by robots.txt is mandatory for spiders, I think I would support that. If the judge held that the terms of use applies even if this site's robots.txt did not forbid crawling, then that is horrendous.

Google & Harvesting

[Xner]

So, is Google illegal too, when it crawls the Web without obeying conditions written on some WWW page with an Accept button?

We have a well-established protocol that allows site operators to tell webspider operators that they would prefer them to stay away: the robots.txt.

I imagine that if a dutch counterpart google had an indexbot that did not respect the contents of robots.txt and violated the conditions of a certain site, they could be successfully sued under this new ruling.
On the other hand, if the indexbot "plays nice" and the site owners forgot to set up the robots.txt, the judge will probably rule in favour of the defendant.

I do not like this ruling a bit, and being in the Netherlands i fear it might be cause for concern. But frankly, overreacting does no-one any good.

Re:Google & Harvesting

[oyenstikker]

What law makes it illegal to ignore the robots.txt? I've never heard of any.

There is NO good in this....

[duffbeer703]

So now if I am in Holland, by going to a website I am considered to have entered into a contract, which may or may not be readable to me?

If this law applied to car dealers, we'd be bound in a contract to purchase an automobile the second we stepped on the lot.

Re:There is NO good in this....

[leomekenkamp]

Just for the record, Holland != The Netherlands; 'Holland' is just a name for 2 provinces: North & South Holland. The Netherlands are made up of 12 provinces.

Back on topic: yes, if you are in The Netherlands and you are using a Dutch website (thus implying that you know Dutch), you are bound by Dutch law, that's no surprise. If you used the site without knowing any Dutch (which is technically possible) the judge would have taken that into account also. Dutch judges are far from brain-dead;

However (to abuse your example) if you were here in NL and visited a Dutch website for a Dutch car dealer which stated in it's click-through that by using that site you are bound in contract to buy a car there would not hold up in court. No court here in NL. No judge here would _ever_ find such a contract valid.

And you know why? Because when you visit a site one might reasonally expect NOT to be forced into buying something just by visiting that site. That is simply rediculous, and the judge knows it. Disallowing harvesting email addresses and using them for non-personal purposes is ethically, morally and law-technically perfectly normal, and a judge here takes that into account.

Re:There is NO good in this....

[Xner]

Because when you visit a site one might reasonally expect NOT to be forced into buying something just by visiting that site. That is simply rediculous, and the judge knows it. Disallowing harvesting email addresses and using them for non-personal purposes is ethically, morally and law-technically perfectly normal, and a judge here takes that into account.

This is a very important point, and one that warrants extra attention.
Dutch contract law (much as contract law anywhere else in the world) requires contracts to be entered willingly and in good faith. This is something that the Dutch courts don't just pay lip service to.

In the case of the hypothetical car dealer, a client that was somehow directed to the page would most likely not have entered in the contract willingly. Proving mala fide would also be a rather easy job for the defense.

As people often say, It's not just common sense: it's THE LAW!

Re:There is NO good in this....

[duffbeer703]

Thanks for the Holland != the Netherlands, I never knew that. In the histories of the formerly-dutch US city that I live in, Holland and the Netherlands are pretty much used interchangeably!

I am not trying to insult any judge or any nation -- but the issue is that by simply visiting a website, I have entered into some sort of contract. This is absurd. The issue is reminiscent of "Content Providers" claims that deep-linking to content on a webpage is theft because of their website EULA. In fact, reinforcing the notion that an unacknowledged EULA is a legally binding document reinforces the anti-deeplinking cause and endangers the WWW and contract law as we know it.

My example of the car dealer was a non-web example design to illustrate the absurdity of this ruling. If I can tuck a EULA somewhere in a website and bind people to conform to whatever that EULA says in other areas of the website, why can't I do that with real property?

Using that logic, it is perfectly reasonable for a car dealership to require you to purchase something when you step on their property. After all, they are providing you with a service by allowing you to browse their inventory.

In my opinion, computer software and alternate publishing techniques like the web should be legally treated like a book. If you choose to give access to your software or data away with stipulations, both parties must be mutually agreeable to the stipulations.

No Shirt, No Shoes, No Service

[qwijibrumm]

If I put up a sign at the front of my store saying "No Shirt No Shoes No Service" It is understood that a term of using my store is wearing a shirt and shoes. If you don't abide by my terms, I can refuse you service. We didn't sign an agreement. I hardly see how this is different. (That is, in general principles for all you nitpickers out there.)

Re:No Shirt, No Shoes, No Service

[Jerf]

Irrelevant. "No Shirt No Shoes No Service" is not a statement of conditions for doing business. It is actually a statement of the law. It is illegal for public health and safety reasons to enter a store without shoes, due to the spreading of foot disease. "No shirt" is probably more a community standards thing, but it's still the law.

We didn't sign an agreement because regardless of the agreement, the law still binds. Technically, the store owner doesn't have a choice, they must evict a bare-footed customer, even if they agree with the customer not to.

Try again, perhaps this time without metaphors... concentrate on the real differences.

Re:No Shirt, No Shoes, No Service

[qwijibrumm]

No, the sign "No shirt, No shirt, No service" is not a law in all places. When was the last time you went to Daytona Beach?
Sorry for the metaphor but that was the best way to put into the perspective that sometimes one does not have to sign noterize and witness before God an agreement that can be settled by a notice such as a sign.

By the way, if metaphors had no place in deciding law, then how would the legalities of new technologies be determined?

reverse Dimitry Skylarov

[capoccia]

so can the spam king be arrested if he ever travels to the netherlands?

Re:reverse Dimitry Skylarov

[radja]

maybe... but then the us would threaten to invade again, since american citizens can only be tried in an american court (according to the US)

you forget a few things here.

[www.sorehands.com]

When you download a site, you are making copies. When you make an unauthorized download, it is a copyright violation.

When you place a website up, you give an implied permission to make copies. But, one must comply with terms of use. The robots.txt file which is both a standard and instructions saying what files can or cannot be downloaded via a bot.

With a terms of use, you can argue that a user has agreed to this after reading the first page with the terms of use on it.

Have you noticed the back of a movie ticket that says you can't videotape the movie when you go into the theatre?

Of course an unreasonable terms of you will be laughed at in court.

Plan!

[Apreche]

First I make a website and get people to visit it.

Then I make a EULA. It will have clauses in which the user agrees to give me all their money, property, and become my eternal servant. They will also agree to give me their computer! Everyone who visits the website owes me their soul! They didn't even agree to it!

Heck, I could make a program and put clauses like that in the EULA and get people to click I agree. Nobody reads those things anyway.

Um, PROFIT!!!! BIG BIG PROFIT!!!!

Maybe Bill Gates will visit my site! Or maybe the Sultan of Brunai. Technically he owns a whole country.

Translation

[suss]

I've translated some of the terms of use, see below.

Door uw gegevens aan de E-mailgids toe te voegen, gaat
u ermee akkoord dat deze via de E-mailgids te vinden zullen
zijn.

By adding your data to the E-mailguide, you agree this data
will be searchable through E-Mailguide.

De gegevens in de E-mailgids mogen uitsluitend worden
gebruikt voor het verzenden van enkelvoudige berichten. Het
gelijktijdig verzenden van al dan niet commerciële
berichten aan meer dan een adres - mailingen - is expliciet
niet toegestaan, zulks op straffe van een dwangsom van Hfl.
1000,- per overtreding, waarbij elk bericht in een
geconstateerde mailing als een individuele overtreding
gezien zal worden.

The data in the E-mailguide can exclusively be used for
sending single messages. Sending multiple messages of
either a commercial nature, or not, to more than one
address (mailing), is explicitly forbidden, punishable by
the sum of 1000 guilders per violation, where each message
in an acknowledged mailing will be seen as an individual
violation.

Ook is het niet toegestaan om gegevens uit de
E-mailgids over te nemen in andere gegevensverzamelingen,
tenzij voor eigen gebruik. Middels een aantal
controle-adressen in de E-mailgids zal toezicht worden
gehouden op het naleven van deze voorwaarden. Overtreders
zullen binnen en buiten rechte worden vervolgd.

It is also forbibben to transfer data from E-mailguide into
other databases, except for personal use. By use of a
number of control-addresses in E-mailguide, adherence to
these rules will be checked. Violators will be procecuted
within and without the law.

In the spirit of this article....

[dotgod]

Eat this you dirty scumbag email address harvester bots.

Fortunately: Fair Use

[Tom7]

Fortunately, the US Copyright Code (I can't say much for Holland) has exceptions to the exclusive rights of copyright holders ("Fair Use"). Fair use is not an implied permission given by the copyright holder, it's a limitation of the copyright holder's exclusive right. I don't think this is really a copyright issue, because harvesting e-mails (unless the original page was just a list of e-mail addresses) captures such a small fraction of the copyrighted content, is obviously transformative, and doesn't interfere with the copyright holder's ability to sell the original work. The only thing that is at issue here is the license that the crawler bots did not accept.

Let's put this in a different light: Slashdot users were up-in-arms when fatwallet recently received legal threats (Copyright) from retailers like Wal-mart for posting price details on their site.

Other than being something that annoys us rather than helps us, what's the difference?