Saturday, March 14, 2009

Ryanair screen scraping case is (partially) scraped away from the Irish courts

Remember Ryanair v. Bravofly - the case brought by Ryanair in the High Court seeking to prevent Bravofly from screen scraping its website to provide users with price comparison information?

In a recent judgment, the High Court has now accepted that it has no jurisdiction over a large portion of that litigation.

The issues here are somewhat complex but to summarise: after the action against Bravofly was commenced Ryanair added a second defendant - Travelfusion - to the proceedings, on the basis that they were the "provider of the technical facilities and services necessary to permit the screen-scraping facilities".

Travelfusion, in turn, applied to have the proceedings against it dismissed on the basis that the Irish courts had no jurisdiction to hear the matter under the Brussels Regulation. This argument had two dimensions - first that as an English company with no place of business in Ireland there was no basis for jurisdiction under the Regulation and secondly that the terms of use of the Ryanair website conferred exclusive jurisdiction on the English courts. Ultimately, however, Travelfusion rested its case entirely on the second aspect.

The relevant provision was Clause 7 of the Terms of Use, which provided:
Disputes arising from the use of this website and the interpretation of these Terms of Use of the Ryanair website are governed by English Law. All disputes relating to these Term of Use and the use of the Ryanair Website are subject to the exclusive jurisdiction of the English court, save that Ryanair may, at its sole discretion, institute proceedings in the country of your domicile.
Ryanair conceded that if the clause applied it would determine jurisdiction over all the screen scraping claims - the question was, however, whether the clause took effect as part of an agreement between the parties.

This put Ryanair in a difficult and awkward position. Their claim that screen scraping was prohibited rested in large part on the argument that the terms of use were contractually binding on visitors to the site - if that were so, however, then the clause would take effect and Article 23 of the Brussels Regulation would confer exclusive jurisdiction on the English courts. Travelfusion was also in an awkward position - seeking to assert that the choice of law clause was effective while the remainder of the terms of use were not. As the court noted:
the circumstances giving rise to the issue in this case are highly unusual. The party who has produced the standard form containing a choice of jurisdiction clause is the one saying it does not apply. Equally the party denying that there is any contract at all is the one who is placing reliance on a clause which arises out of a contract alleged by its opponent but denied by it.
Could Travelfusion rely on the choice of law clause while simultaneously denying the existence of a contract? The court's conclusion was that it could. Three factors were important in this outcome. First, it would do no injustice to Ryanair to apply a choice of law clause which it itself had put forward. Secondly, if Ryanair were successful in its claim the choice of law clause would necessarily be contained in any contract. Thirdly, the alternative would be wastefully to litigate the same issue (whether a contract existed) twice - once at the jurisdiction stage and once again at the substantive hearing.

Consequently, the court accepted that the choice of law clause applied and as such Ryanair's action against Travelfusion was struck out. The case against Bravofly, however, remains.

From a practical perspective, this is certainly a cautionary tale for internet businesses - don't assert a choice of law in your website terms of use unless you're happy for it to apply to all claims that might arise out of the use of the website.

(Ryanair's terms of use, incidentally, seem to have been amended since the start of this case in order to head off this type of defence. The current terms of use state "It is a condition precedent to the use of the Ryanair website, including access to information relating to flight details, costs etc., that any such party submits to the sole and exclusive jurisdiction of the Courts of the Republic of Ireland and to the application of the law in that jurisdiction, including any party accessing such information or facilities on their own behalf or on behalf of others.")

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