Hungary - Anonymous publisher v Anonymous provider of an online search engine, 3 December 2024

Claimant: anonymous publisher of the https://www.gemkapocs.hu/ press publications 

Defendant: anonymous provider of an online search engine

Not publicly available.

Most likely after 15 May 2023, as the Claimant’s claim concerned the period between 1 October 2021 and 15 May 2023.

Between 1 October 2021 and 15 May 2023, the defendant's search engine robot scraped the content of the claimant’s online press publication and indexed its pages. The defendant's search engine displayed the claimant’s content among the search results for its users and stored at least parts of the claimant’s press publication or information referring to it in the index. The search results contained a hyperlink and individual words or very short snippets from the press publications. 

The claimant set up the robot exclusion protocol and meta tags on its website publishing online press publication in such a way that the defendant's search engine robot could (i) crawl the claimant’s website and (ii) index the content on the claimant’s website.

Claimant’s claim 

The claimant argued that hyperlinks and article titles may be displayed lawfully, but the defendant's search engine also displays preview content in the search results that highlights either the most important parts of the claimant’s press publications or their high-level summaries. This may lead the persons using the defendant's search engine to decide not to visit the claimant’s website to read the full article (i.e. they may be satisfied to only read the materials displayed in the search engine result). The claimant argued, therefore, that the defendant's search results contain details from the press publications which, in terms of their content and scope, go beyond the exception provided regarding "individual words or very short extracts".

Defendant’s defence

The defendant argued that the appearance of previews created from freely accessible websites similar to the claimant’s press publications in the search engine did not constitute ‘making them available to the public’. 

Furthermore, the defendant insisted, the previews displayed by the defendant among the search results do not exceed the exception regarding "individual words or very short extracts". 

The defendant also argued that the right of reproduction is ancillary in nature and does not apply where there is no making available to the public at all. If the indexing of the claimant’s website also constitutes reproduction, it is subject to the exceptions for temporary acts of reproduction and TDM. 

The defendant also referred to the fact that the claimant authorised the reproduction and making available to the public when it instructed the defendant, by means of a robot exclusion protocol, which can be considered a market standard, and other search engine optimization tools, to use the contents of the website. 

Court’s judgement 

The Court held that the previews constituted only "individual words or very short extracts", since the defendant did not publish a summary in the search results and the previews did not contain the only relevant information within each respective press publication. These previews did not make it unnecessary to read the press publication, and did not go beyond what is necessary for the user to assess relevance based on an automated search. The previews contained only fragmented information pertaining to the full publication, in order to attract attention and generate traffic, but did not undermine the efforts and investment of the press publisher and thus did not infringe its legitimate interests.

The Court also held that the defendant’s web scraping and indexing activities did not constitute infringement since they were covered by the TDM exception. The reasoning for this decision was as follows: 

During the web scraping process, while the defendant downloaded the websites and therefore did undertake copying and reproduction, during indexing, the defendant did not store the downloaded pages but analysed them automatically and stored the data and information collected in this way in its database (index). 

The defendant had lawful access to the press publications and the claimant did not make an express reservation, as it did not configure its robot exclusion protocol to prohibit the defendant’s activities. 

Further, the Court confirmed that the defendant’s activities did not amount to an infringement since the defendant did not save the page downloads extracted by web scraping, and the data and information contained in the index are not copies, and only retained reproductions and extractions for as long as necessary.