Facebook Makes Some Progress Against a Scraper–Meta v. Voyager (Guest Blog Post)

by guest blogger Kieran McCarthy

Companies looking to stop web scraping have suffered a losing streak in the Northern District of California recently. In February, Meta lost on Partial Summary Judgment against Bright Data on its breach of contract claim. Then Meta dismissed the suit, rather than appeal. In late March, X Corp. had its breach of contract and CFAA claims against the Center for Countering Digital Hate (“CCDH”) dismissed at the motion to dismiss stage. And then in early May X Corp. took its turn losing to Bright Data in the Northern District of California, with the judge granting Bright Data’s motion to dismiss on all claims.

Does that mean that plaintiffs like Meta can’t sue to stop scraping anymore?

No, it does not. On May 23rd, in another case also out of the Northern District of California, the court denied a motion to dismiss Meta’s breach of contract and CFAA claims against Voyager Labs Ltd., a UK-based surveillance company.

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The opinion was short and focused on a few key facts.

First, Voyager Labs allegedly created “thousands of fake accounts to scrape, then sell, platform users’ social media data.” Second, it “set-up [sic] a sophisticated infrastructure to avoid detection by the technologies Meta implemented to detect and stop such misuse of its platforms.” And finally, Meta alleged that Voyager Labs had “actual knowledge” of its terms.

The court says, “in light of the allegations that Voyager had actual notice of the Facebook and Instagram terms, it is plausible to infer that Voyager’s continued use of the social media platforms signified its assent to those terms, which as Meta alleges, every user must accept in order to use Facebook and Instagram.”  Id. at 4.

Here, the court muddles the various contract formation standards. The court seems to be suggesting some form of Register.com v. Verio.com, Inc. type of acceptance applies in this case. But there’s a simpler formation explanation here. When a platform like Meta requires a user to create an account and agree to its terms as part of the account creation process, they are required to assent to the terms whenever they create an account. By allegedly creating thousands of accounts, Voyager Labs presumably assented to Meta’s online terms thousands of times.

That said, Bright Data was also alleged to have actual knowledge of the terms of which it was supposedly violating in both breach of contract cases it prevailed. And so did CCDH and its co-defendants.  Here, the court did not consider the defenses that allowed those defendants to prevail, namely lack of damages and contract preemption. On the selling of scraped data allegation, that is largely identical here to what was alleged in Bright Data. But it is unlikely that contract preemption is available as a defense to creating fake accounts. That said, in both the CCDH and Bright Data cases, the court heavily emphasized that the alleged damages had to stem from to the alleged breach. Under that rationale, the question here would be what, other than the selling of scraped data, is Meta alleging that Voyager is doing here that is causing damages to Meta when Voyager creates fake accounts? We don’t know, because the court didn’t say.

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I suspect we’re entering an era of nuance when it comes to web-scraping litigation. Gone are the days when the platforms can always expect to win. But nor can scrapers prevail on all fact patterns. Going forward, the what, when, where, how, and why of data access and data use will determine who prevails.