PropertyGuru Pte Ltd v 99 Pte Ltd

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 09 March 2018
• Neutral Citation: [2018] SGHC 52
• Court: High Court (Singapore)
• Docket Number: Suit No 470 of 2016
• Year: 2018
• Published date: 13 March 2018
• Hearing Date: 22 September 2017,20 September 2017,17 November 2017,27 September 2017,27 October 2017,26 September 2017,21 September 2017
• Plaintiff Counsel: Sathinathan s/o MR Karuppiah and Shaun Marc Lew (Samuel Seow Law Corporation)
• Defendant Counsel: Koh Chia Ling and Gerald Tan Han Jie (OC Queen Street LLC)
• Subject Matter: Contract,Breach,Tort,Inducement of breach of contract,Copyright,Infringement,Groundless threat
• Citation: [2018] SGHC 52

Hoo Sheau Peng J: Introduction

The plaintiff, PropertyGuru Pte Ltd, and the defendant, 99 Pte Ltd, are competitors in the business of providing online property classifieds. They each own and operate a website for this purpose, being www.propertyguru.com.sg (“the PG website”) and www.99.co (“the 99 website”). As the defendant accepts,¹ the plaintiff established itself as one of the leading market players after launching its website in 2007. The defendant is the later entrant in the market, having launched its website only in 2015.²

The suit concerns property listings that were originally found on the PG website but were reproduced on the 99 website. The parties use the term “cross-post” to refer to the process of reproducing listings from one portal to another, and in this judgment, I use it in that sense.

The plaintiff claims that in developing and marketing a mobile application which allows property agents to cross-post listings from the PG website to the 99 website, and in providing a service by which the defendant undertook to manually cross-post property agents’ listings from the PG website to the 99 website, the defendant has (a) breached the terms of a settlement agreement between the parties, (b) induced property agents to breach the terms and conditions for the use of the PG website that they were bound by, thereby committing the tort of inducement of breach of contract, and (c) infringed its copyright. The plaintiff seeks damages and injunctive relief against the defendant.

The defendant denies that it is liable to the plaintiff. It counterclaims against the plaintiff for making groundless threats to commence legal proceedings for copyright infringement.

The trial was heard over five days in September 2017. The plaintiff called the following witnesses to give evidence at the trial: (a) Mr Jani Antero Rautiainen (“Mr Rautiainen”), its managing director; (b) Mr Koh Yew Hoo (“Mr Koh)”, the sole director and shareholder of a company named Media Publishing Group Pte Ltd (“MPG”), of which I will say more in due course; (c) Mr Jason Gregory, a product director of the plaintiff; and (d) Ms Carolynne Tong (“Ms Tong”), a property agent. The defendant called two witnesses: (a) Mr Cheung Yik (“Mr Cheung”), its founder and present chief executive officer, and (b) Mr Phun Yan Yan (“Mr Phun”), its chief operating officer. The trial was bifurcated and dealt only with the question of liability.

Having received the parties’ closing submissions on 27 October and reply submissions on 17 November, I reserved judgment. I now deliver my decision.

Background The parties

The plaintiff was incorporated in October 2006.³ It launched the PG website sometime in 2007.⁴ The PG website allows end users, be they individuals wishing to buy, sell, rent or lease property, or the property agents of these individuals, to list properties or search for property listings. Each listing usually contains information about the property (such as its location, the price at which it is being offered and its size), photographs and a write-up.⁵

The defendant was incorporated in Singapore in January 2014.⁶ According to Mr Cheung, the defendant wanted to develop a search engine for property listings that would be more “intuitive”, and which would make use of algorithms to allow users to find listings more efficiently.⁷ To this end, the defendant launched the 99 website in January 2015.⁸

The settlement agreement

When the 99 website first started operations, the defendant took rental listings from the PG website and listed them on the 99 website. Mr Cheung candidly admitted this.⁹ In technical terms, what the defendant did was to “scrape” listings by means of a software.¹⁰

Not long after the launch of the 99 website, the plaintiff’s solicitors contacted the defendant. They conveyed the plaintiff’s unhappiness about the defendant’s “scraping” of listings from the PG website and asked that the defendant cease doing so.¹¹ The plaintiff and the defendant then entered into settlement talks which culminated in the signing of a settlement agreement dated 28 September 2015 (“the Settlement Agreement”).¹²

The Settlement Agreement begins with the following preamble:

WHEREAS

(A) PropertyGuru believes that 99 had accessed and reproduced content (“the Content”) from the website http://propertyguru.com.sg owned by PropertyGuru (the “Website”), and 99 denies the above. (B) PropertyGuru regards such accessing and reproduction of the Content by 99 as a breach of the Terms of Service and Acceptable Use Policy of the website and/or an infringement of PropertyGuru’s copyright in the Content (the “Dispute”). (C) The Parties wish to resolve the dispute amicably, without recourse to litigation.

This is followed by cl 1, which records that the plaintiff and the defendant agreed “to a full and final settlement” and that the terms of the Settlement Agreement would “immediately be fully and effectively binding on them.”

Then, Clause 2.1 states as follows: 2. MANAGEMENT OF RELEVANT INFORMATION AND MATERIALS 2.1 Without any admission as to liability, 99 shall undertake to, within 30 days of the date of this agreement, and where applicable: (a) Not, whether by itself or by its affiliate companies, affiliate websites, administrators, officers, managers, and/or agents, substantially reproduce any of the Content, or any contents found on any website owned by PropertyGuru, without PropertyGuru’s consent. To avoid doubt, nothing herein precludes 99 from taking Content pertaining to a user or agent pursuant to the user or agent’s request; (b) Not connect to, for the purposes of posting property listings and/or any other information on, the Website, or any website owned by PropertyGuru, through any of 99’s websites, programs, applications, servers, or services or authorise any of its clients, users, affiliate companies, affiliate websites, administrators, officers, managers and/or agents to do the same; (c) Take reasonable efforts to delete any of the Content from its own website (at 99.co) and to destroy any copies of such Content; and (d) Take reasonable efforts to delete or destroy any materials prepared based on any of the Content.

Cl 2.2 provides a list of websites for the purpose of interpreting “any Website owned by PropertyGuru”, a phrase which is found, for example, in cl 2.1(a). The list includes the PG website.

The dispute between the parties did not end with the Settlement Agreement. After the date of the Settlement Agreement, the plaintiff claims that the defendant continued to cross-post listings through a mobile application known as the Xpressor Application (“Xpressor App”) and through a service it offered known as the Posting Assistant Service (“PA Service”).¹³ I now turn to explain the nature of the Xpressor App and PA service.

The Xpressor Platform and the Xpressor App

“Xpressor” is the name of a web-based platform (“the Xpressor Platform”) which allows users to post property listings to multiple web portals simultaneously.¹⁴ The Xpressor Platform is owned by MPG, which I referred to at [5]. According to Mr Koh, MPG has operated the Xpressor Platform since 2009 or 2010.¹⁵ At the time of the trial, the Xpressor Platform was still available on the internet.¹⁶

The functions of the Xpressor Platform were explained by Mr Phun, by reference to screenshots of the various pages within the Xpressor Platform. The screenshots show that the Xpressor Platform allows a user to key in information about their property, and then choose onto which portal or portals for online property classifieds they wish to post their listings. The screenshot of the Xpressor Platform’s Facebook Page lists eight different portals (including the PG website and the 99 website) as portals onto which users can post their listings.¹⁷ In addition, the user may also select the dates and times at which a listing is to be cross-posted from one portal to another.¹⁸

On 26 March 2015, the defendant and MPG entered into an agreement (“the Xpressor Agreement”),¹⁹ by which MPG would, for a fee, allow the defendant to provide access to the Xpressor Platform on the 99 website. The purpose of the Xpressor Agreement was to allow users of the 99 website to access the Xpressor Platform from the website. This project was, however, abandoned due to “technical issues”.²⁰

According to Mr Cheung, after the technical issues surfaced, the defendant advised property agents who were using the 99 website to use the Xpressor Platform via the website hosted by MPG.²¹ Property agents found this inconvenient, and suggested to Mr Cheung that they would prefer using a mobile application.²² Furthermore, MPG itself wanted to build a mobile application but did not have sufficient resources to do so. Therefore, Mr Koh asked the defendant to build an application for them. Thereafter, MPG and the defendant collaborated on the development of the Xpressor App.²³

The Xpressor App allows users to cross-post their listings on the PG website to the 99 website. On opening the Xpressor App, users are required to log in to their “Guru Account” (ie, their account on the PG website). The Xpressor App then lists all their active listings on the PG website, and the user may choose to cross-post either a selection of those listings or all of them to the 99 website.²⁴

The Xpressor App was made available for download on the iTunes Apple Store and Google Play Store.²⁵ There is some dispute over the precise period when it was available. There is documentary evidence that the Apple Store gave approval for the upload of the Xpressor App on 6 June 2015 and that on 23 January 2016, Apple Store notified Mr Koh (who was registered as the owner of the Xpressor App) that it would be taken down.²⁶ However, there was no documentary evidence on when the Xpressor App was made available on the Google Play Store. Mr Phun said it was taken down...