Case Documents

Public Filef\lo; CT-2015-:010 COMPETITION TRIBUNAL IN THE MATTER OF ·the Competition Actf R.S.C; 1985i c. ('."34, as arheni:led;

AND IN THE MATTER OF an Application b\i AtidataxCariada, OLC for an Order pursuant to section 103,tgrariting leave fo make application under section 75~ oft he Competition Act.

Bi:TWEEN~ AUDATEXCANADA, UtC Applicant -and-CARPROOF CORPORATION,Tf{ADER CORPORATrON1 and eBAY CANADA LIMITED. Respondents AFFIDAVIT OF SCOTI NEil

!,SCOTT NEI.L ;.ofthe City ofBerlin·-,- inth~ co. L I am the Director, Comrrierdal Business With eBay gmBH, Between 'October2013 and August 2015, I w<1s employed by eB11y Canada. Limited (' Director; Vertkals for KijijLca. From March 20lftp September .2013, I was employed by eBay Can.ada a.s. the Head.of Verticalrfor KiJiji;ca. In those roles, I provide~ marketing and support servkes fo Marktplaats B.V. (';Marktplaats")in respectofihe Kijiji;ca website. As ~uch, l have personal knowledge oftne facts arid matters referred to in fhi~ Affidavit, except where stated to be.on Jnforn1atii:irl ai'ld beliefin which cases I verily believe sudfiriftfrmation fo be true.

Marktplaats and Kijiji;c~ 2. Miir'ktplaats is a Dutch 1:ompafly with its headquarters irr Amsterdam, The Netherlands .. Marktplaats operates the Kijiji.ca website ("Kijiji".) and is the owner of the Confidential ahd Propriet;;iry Listir\gData (as.defined and discL1ssed bel6W).

u.r itry o-·f German.y } MA. KE OATH Al\IP SA'{: - - .. 1 eBa'(Canada'') as the Managing

2 Public 3. Kijiji is a local classified ads website that enables Canadians to buy, sell and trace goods and se'rvices in a varletY of categorles1 including used cars and trucks; First launched lri Montreal and Quebec City in February 2005; l<ijijHs now available in over 100 cities across Canada.

Cars & Vehicles Ads on Kijiji Localads for used cars and trucks have been available on Kijiji under the product category ''cars & vehiCles" sf nee July 2005. As a result of enormous effort and expense over .. more than a decade, Kljlji has become one of Canad<ls largest databases ofused car and truck ads. Currently, during any.given month, there are approximately-classified ads for used carn1nd trucks (together, ' 1 Vehldes") on Kijijl. 5. Vehicle owners and dealers {collectively, "Kijiji Sellers") wishing to sell Vehicles through Kijiji are directed to submit a specific complement. of information to Marktplaats, including price, make, model arid year, kilometer$, body type, location (i;e., city or area); sub area {where a Kijiji Seller is located in one of the "areas" listed under "location", such at the GreaterToronto Area), address ;;ind email. Optional information that may be submitted by Kijlji Sellers Includes the vehicle identification number ("VIN"), trim, transmission, drlvetraln; colour a.n.d fuel type.

Vehicle a<ls {and the data they cofltaln) are live on Kijljl and publicly-available for only a limited time. Ads posted by Vehicle owners stay on Kijljl for 60 days, while dealer ads la.st 31 days (unless, in either case, they are reposted). Further, while .they are live, Vehicle ads are available only on the appropriate local Kijiji webpage (e.g., BellevH!l;l, On\!lrio; Gander, Newfoundland; Nipawln, Saskatchewan}, Further, consistent with Kljiji's raison d'etre as a site where people can connect with .others in their own community, users can only search Vehicle

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ads by city or area. It is therefore not possibleto sear<;h orview the Vehicle ads on a national basis, !lctoss the entlre ·site; except by separately accessing each of the more than 100 dedicated, local KfjUi webpages. As a result, the vastrnajorrttof theVehlcle ads on KiJljl are n6t . readJly or practically accessible or available to the public at large without substantial effort

8. Ft.1rther, absent unauthorized scraping or other unauthorized, harvesting of data from tlie KijiJI sitfi! with the aid of a computer script (which, as discussed below, is expressly forpidden ,by the l<ljiji Terms of Use}, It Is practically impossible and COfi1!l1erdally lnfeasibleJor a third party to (manually) amass In usable form the data displayed in the Vehicle ads across the entire site.

The: Confidential and Proprietary Listing Data

11i · The.Confldential and Proprietary listing Data Is the result of enormous exp~nse, effort, sklll and judgment. This collecUon oflnformation does not exist elsewhere. lfhas been extracteq atid mined over a long period of time and from a range ot potentially availaJ>Je lnformatlon to serve specific commercial purposes.

11. As a confidential compilation of information that does not exist elsewhere, the Confidential and Proprietary Listing Data is unique, and a valuable asset of Marktplaats's

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b4siness1:hat provides an opportunity to obtain aclvantageoverthose who do not have access to It.

12. Marktplaats takes measures to ensure that the secrecy of the Confidential and 13. Only a small number of authorized persons have access to the Confidentialand Proprietary Listing Data. These individuals ale obligated to keep the Confidential and Proprietary Listing Data (and all other' confidential and proprietary data and information of Marktplaats), in the strictest confidence.

14. Further, the Kijiji Terms of Us~ expressly prohibit the scraping of any data displayed on the site

express written authorization. In particular, users and/or those who access the site agree ''not to eopy, modify, or distribute Kijiji Services, our c;opyrights or trademarks'' and not to:

• copy, modify, or distribute any othe.r person's contenti • us!,' any robot, spider, scraper or other automated means to access Kijijl and collect q:mtent for any purpose without [Marktplaats's] express written permission;

• harvest or otherwlse i;ol!ect information about others, including emalladdresse.s, without their c;:onsent; [and]

• bypass measures used to prevent <>r restrict access to l<ljlJI: Att9ched to my Affidavit and marked as Exhibit

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11 A 11 is a copy of the Kijl]!Terrns ofUse.

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15, Marktplaats defends its Confidential and Proprietary Ustin"g Data from unauthorlted use or disclosure, rncludlng scraping.

Data licensing Agreement With C1rProof 16. In or about September 2012, CarProof raised the possibility of entering into a data licensing agreement in respect of Marktplaats's Confidential and Proprietary Listing Data ..

(a)

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(b) (c) (d)

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Audatei<J-las Not Pre.viously Beel'l .<l "Customer'' of Marktplaats first proposed a licensing agreement), Audatex raised the posslbllity ofe ntering Into a llcMsing agreement in respect of Mar~tplaats's Confidential and Proprietary J,.istlng Data. In response, I advised that, Marktplaats was una!)Je to license the Confidemtlal and Proprietary Listing Data to Audatex for total loss calculations or vehicle valuations for lnsurance purposes, This. was reiterated by me to Audatex in .a subsequent conversation in the late November timefrarne. Ouring that conversation, I also

25. There was no further communication regarding the license sought by Audatex until July 2015. In the it)tei'im, however, Audate>t began using, AS noted above, such scraping is direttlytontraryto the express terms of the KiJiji Terms of Use which state, in relevant part, that those who access arid/or use the site shall not ''use any robot; spider, sc:raper or other automated means to access Kijiji and collect content for any purpose without [Marktplaats'sJ express written permission".

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26; 011 or about July 1, 2015, it was cjetermined th~tAudatex was scraping the Kijlji site and reproducing KIJIJI ads within Its Autosource reports.

27, By emaH dated July 6, 20151 I requested that Audatex immediately cease and desist. In relevant part, my email stated as follows:

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28. Audatex ceased scraping the l<ljiJi site and, by email dated Julyl5, 2015, advised that it "remaln[ed] very interested Jn pursuing a formal data license agreement with Kijiji". [emphasis added)

1.51. In response, by email dated August 12, 2015, I again advised that Marktplaats was "unable to consider that posslbillty at th ls time, 11 • Quite apart from Marktplaats's ongoing obligetions under the Data Provision Agreement, AU<iatex's disregard for Marktplaats's intellectual property rlghts and its violation of the Kljiji Terms of Use gave rise. to s1gnificant concerns- which persist today - that Audatex would not comply with the terms of a data licensing agreement with Marktplaats, A copy of the correspondence related to the data licensing agreement requested by Audatex and the unauthonzed scraping by Audatex of the Kijiji site is attached at Exhibits 8 and 9 to the Toth Affidavit.As can be seen from the chronology set out above, paragraph 18 ofthe Toth Affidavit, which states that "[u)ntil recently, Audatex Canadian automobile listings, which is no longer avaifable to. it~ In short, CarPmof has entered into exclusive contracts with [. .. ] eBay and other companies, whieh have, despite Audatex's efforts, prevented It from negotiating access to such data going forward", is Inaccurate and misleading.Those statements are inaccurate and mlsleadit1~ irisof~r as they purport to suggest that Marktpl.aats (or another eBay entity) had previously licensed the Confidential and Proprietary Listing Data to Aodatex but (recently} ceased doing so due to an exdusive data licensing_ agreement wlth CarProof, when in fad Audatex has never had

authorized access to Marktplaats's Confidential and Proprietary listing Data and has never -been a "customer" of Marktplaats.

32. Further, it wasAudatex's failure to approach Matktplaats on a timely basis about the possib11lty of negotiating a formal data flcenslng agreement, not the Data Provision .Agreement with CarProof, that prevented it from negotiating access to .the Confidential and Proprietary listing Data.

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33, There was no respqnse by Aud11tex to my email of August 12, 2015, and there was no further communication from Audatex in respect of the Hcenslng of Marktplaats's Confidential and Proprietary Listing Data (or otherwise) until October 6, 2015, when ,eBay Canada was served with Audatex's redacted application for leave to apply for an order under sectl6tl 75 of the Competition Act.

Confidential Information 34. Information regarding Marktplaats's Confidential and Proprietary I.isling Data, business, contractual relations and te,rtns of trade (collectively, the l'Conffdential Information") Intluded in this Affidavit ls highly confidential to Marktplaats. Suchinformationiskept in strict confidence, and ts not in the normal course disclosed by Marktplaats to third parties.

35. Disclosure of the Confidential Information would resvlr In specific, direct harrn to Marktplaats because this information is confidential and commerclal!y and competrtively sensitive, Access to the Confidential Information would allow MarktJ>laats's competitors and others to· obtain C:ompetltive advantages in the marketplace and to harm Marktplaats's competitfve position.

SWORN befqre me ) at the City of Berlin ) inthe~Country of Germany } this s'n day of Novemberi 2015 ) I \ SCOITNEIL l A Commissionrter, etc.

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Roll ofOeeds No. T 54312015 Notary Dr; Thomas Lindemann. Berlin I, the undersigned notEJry Dr. Thomas Lindemann, Serlln, Germany hereby certify that Mr. Scott Neil, born on 13.05.1970, with business address atAlbert~Einstein~Ring 1, 14532 Kleinmactinow/Germany, of Canadian nationality, identified by his valid official passport, today signed the foregoing dooumenl in my presence. I hereby certify the Identity and the authenticity 6Hhe signature orthe person mentioned above,

.T he question bf a prior involvement of the notary public Within the meaning of.Sect 3 para. 1 no. t Notarlsation Act was answered in the negative by the person slgning the foregoing

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This Is Exhlblti'A'i referted to In the Affidavit of Scott Nell s\vorn before me this 5th day of November, 2015

A Cornmissioner1

etc.

M/.U:Z015· ki]fj l (http://www.kijiji.ca/)

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- "'"~- -----~-~-'"'"--y, ,, ---~~~~--·-·--·- -·----~-~·-- ----------· -~--- ~- ~ ~--~··1 ' ' i ' g) Kljiji Terms of Use Welcome to www.kijiji.ca (http:/lwww.kljljl.ca) (!iKijiji"}. Thanks for stopping by. These Terms of Use, I the Privacy Policy, tije Mobile Dev_ices Terms and all policies posted on our site set out the terms on / 1 which we offer you access to and use of our sit~. services, applications and tools (collectively l, "Services"). You can find an overview of our policies here (/helpdesklpolicles/posting~pol!ciBs). All policles1 the Mobile Devices Terms, and the Privacy Policy are incorporated into these Terms of I U!:!e. You agree to comply with all the above when accessing or using< our Services. l j By accessing 1-0jiji you are agreeing to the following terms, which are designed to make sure that KIJijf works for everyone. Kijiji ts provided to you by Mart<lp!aals BV, Wibautstraat224~2, 1097 ON Amsterdam, The Netherlands. This policy Is effective Japuary 1, 2009. l t YourAccount. In order to access and use sorne or a portion of the Services, you may be required 1 ~Q register with us and set up an account witb your email address and a password (your ''Ac:count"). 1 The email address you provide wilt be your em all address, and ~u are solely responsible for maintaining the confidentlallty of your password. You are solely resp<msfble for all activities that occur under your Account. Therefore, you should protect your password and make your password difficult for others to guess.

You may connect to the SeNlces with a third-party service (e.g •• Fa:cebook) and you give u$ permission to access, store, and use yourinformation from that service as permitted by that s.ervice and as may be described In our Ptivaoy Policy. If you believe ycmr Account may have been compromised or misused, contact us h:nmediately at Kijljl Customer Support.

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11/4!2015 l<IJljl T~s d'U&e I K!JUI l-lelpdeosk l Using Kijiji SeNice~:h You wlll postln the appropriate ca~egory or area and will not do any of the following bad things:

• violate any laws or our Prohibited Content Policy (/helpdeskfpolictes/prohiblted-content); • be false or misleading; • Infringe any third-p13tty right; • distribute or contain spam, chain letfots, or pyramid schemes; • dlstrib~te viruses or any other technologies that may harm Kijljl or the interests or prqperty of KUUlusers; • impose an uoreasonebla load on our infrastructure or Interfere With the proper working of the KliUi;

• copy, modify, or distribute any other person's content:. • use any robot, spider; scraper or other automated means to acness Kijlji .and collect content I for any purpose without oure)(preas written permission: • harvest or otherwise collectlriformatron about othersi Including email addresses, without thelr I c0nsenti i ' ' • bypass measures used to prevent or restrict access to Kljijl, ! Abusing KiJm Services. Please Use the flagging system to tell us about any problems or offensive content so that t~gether we can keep the Services ·Sile working properly. We may limit or terminate

I our Services, remove hosted content and take technical and legal steps to keep users off Kijiji if we 1 think that ttmy are creating problems or acting inconslstently with the letter or spirit of 01,Jr policies. j However, whether we decide to' take any of these steps, remove hosted content or keep a user off !I Kijijl or not, we do not accept any ilablllty for monitoring KUUI or for unauthorized or uniawfUI content on Kijijl or use of Kljiji by users. ! l Global Marketplace. Some ofKijijrs features may displciy yourad on other sltes that are part ofthe global eBay community, like on eBay or our classlfleds ~ites In other countries, By usiog Kijljl .t Services, you agree that your ads can be dfsplayed on these other sites. ihe terms for our other sUes are shnllar to these terms, .but you maybe subject to additional laws or other restrlCtlons In the 1 countries Where your ad is posted. When yau choose to post your ad to another site, you may be I responsible for ensuring that It does not violate our other site policies. We may remove your ad If Jf I is flagged on any ofo ur sites, or if we believe it causes problems or violates any law or policy. ~ Fees and Services. Using Ktjljl Services is generally ftee. We may charge fees for certaln Services. ' If the service you use charges a fee1 you will be able to revlew and accept that charge. Our fees are l quoted in Qanadian Dollars, and we may change them from time to time. We will notify you of changes to our fee policy by posting such changes on lhe sile, We may choose to 1emporarily change our fees for promotional events or new services; these changes are effective when we ( anti ounce lhe promotional event or new SE!TVice. Our fees are non-refundable, and you are responsible for paying them when they 1 re due.If you don't, we may flmlt your ability to use the Services. Jtyour payment method fails or your accountls past due, \'le may collect fees owed using

other collection mechanisms (for accounts over 180 days past due, we may deduct the amount owed from your PayPal account balance).

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Wll201S KIJijiTermil afUG& I l<IJIJI Hdpdesk l Content. Kijiji Services contains stuff from us, you, and other users. You agree notto copy, modify, j or distribute Kijijl Services, our copyrights or tradem.arks. When y9u give us content; you ~re granting us a non-exclusrve, worldwide, perpetual, Irrevocable, royalty~ftee1 sub-.llcensable rlght to exercise the copyright,• p4bl!clty, and database r!ghbo to that contenl If you believe that your tightS

have been violated, please Milf'y our designated <::0pYffQhta9entat l<ijijfCustorner SUpport (/helpdesk/emalf-usl)and we win investigate the matter. We reserve the right to remove content j where we hf.We grounds for suspecting the violation ofthese terms or the dghl$ .¢any other party.

l l Reporting lntelluatual Propefty.lnfringe10ents(Verifle<l·Rf9hts OwnePi·" VeRO). Do notpost t contentthatlnfrlnges the rights of third parties, This Includes, but ls notHmltad to, contentthat T I lnfr!n~es·oo. il"lteUect1.1al properly rights such as copyrightand trademark (e.g. offering·oounterfelt Items.for sale). We :reserve th& right to remove content Where We have; grounds for suspecting the violation of these terms; our pollclas or of any party's rights. The following steps are for reporting a Ifs ting to Kijijf that you believe mb e il'lfrlnging on your Intellectual property rights. Only the Intellectual property rights owner can report of potentiE1llY tnfringtng Items or listings 'through Kljijl's VeRd Program. lf you have a good faith belief that a !isling on any of the Kl]ijl Services Infringes

1 your coPYrlght, tradem?rk; or other intellectual property rights, atl you need lo do is download I our Notice ofCiaim~d fOfrlngement (NOCl}(httP:/llrifo.klJiji.ca/vero/nocHmglish.pdf}form, fill it out1 1 and faxitto Kljijt After we receive yourfir$fNOcl, Kijijl Wiii confirm yoursnrolmanHn our program and send you Uie lnstructlcms on how to sl.Jbrnitfuture reports etectroniaaUy. We reserve the rlghtto share; in accordance with appflcable law, the cornpleted NOCI form witlithe tlilrd party that originally posted the potentially Infringing listing.

j I Disclaimers and Llmlt,ations of LlabJlity, The Kljiji Services are provided "as Is" and "as .,', . available". You agree not to hold us responsible fofthlngfl other users post or do. /¥3. most of the . stuff on the Killjl Ser\tlces comes from other users, we do not guarantee the accuracy of postings or user communlcatkms orthe quality, safety, or legality of what ls offe~d. We also cannot guarantee continuous or secure accl:lsS to our Services. Notification functionality in our Services may not occur in real .time, Sucht'unctiohafiiy is subjeefto delays beyond our contro1,lnciuding wlthoutllmltatlbn* de fays or latency due to your phys!caf location or your wireless data service provider's network. Acoordihgly, to fhe extent legally permitted we expressly dfsolalm an wartantiesi j representations and condiUons1 express or Implied, Including those of quallty,n1erchahtab11Uy, . merchantable.quality, i;lurabillty; fitness for a particular purpose and those arising by $t~tutEJ. We are

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11Mi..!015 I<ijijlT« ms Of Use I Kipp Hdplesk respecllve officers, dlrectorn, agents and employees (each an hlndamnif!ed Party"). from any claim made by any thir:d party, together With any amounts payable to the third party whether in settlement

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General, These terms and the· other policies posted on Kijijl Services constitute the entire agreem~ntbetween Marktplaats av and you; superseding any prior agreements~ This agreement ls 1 governed by the laws of the Netherlands. We bothsubmitto the non·excluslve jurisdiction ofthe I courts of Amsterdam, The Netherlands. Th ls will not affect your st.atutory rights If you are a I : consumer ahd ~ppUoable consumerlaw reqylres application of another law (such as the law of your l country of residence) for certain topics, If we don't enforce ahy partlcularprovlsion; we are not I waiving our right to do so later. lfa court strikes down any of these terms, the remaining terms will l survive. We may automaUcally asslgri this agreement in our sole diseretion in accordance with the I notice provision below. Except for notices relating to illegal or Infringing content, your notices lo ·LI$· I must be sent by re91stered mau to: I Marktplaats .BV ·1· Wlbautstraat 224-2 • 1097 ON Amsterdam

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