Tuesday, March 02, 2010

Ryanair v. Billigfluege.de - Full decision now available

I've just received a copy of the decision of Hanna J. in Ryanair v. Billigfluege.de and uploaded it to Scribd. At first glance it appears to represent a significant win for site owners who wish to control screenscraping, indexing and other uses of their content:

Ryanair v. Billigfluege.de                                                            


  1. While I like the outcome of this case, lending weight to the enforceability of Terms Of Use in Irish Courts and I particularly think the decision on consideration is wholly appropriate, there are some points here that the judge did not give adequate consideration to.

    Where is the location of the hyperlink to the ToU?
    After specifically mentioning the decision of Judge Sotomayor in Specht v Netscape the judge does not consider in detail the method of displaying the terms.

    Hanna J states "The Terms were not hidden in an awkward part of the screen or in any way concealed" and follows saying Ryanair included their ToU "via a hyperlink that the website user is required to view and assent to"

    I am familiar with the Ryanair website, and the ToU appear as a hyperlink on the home page at the bottom of the page which requires a scroll down. There is no pop up requiring assent, nor a login to use the site with same. I can begin to search for a flight from the top of the home page. Obviously terms of contract with regard to the sale of flight tickets would be assumed after this point, but not necessarily ToU of the website itself. It is only then after 2 pages removed from the homepage that you must click an assent to the website terms of use, as you purchase tickets. A point overlooked when saying the website user is required to assent to.

    The one major point in support of the judges reasoning is that both parties are commercial entities and as the judge noted near the end of the judgement, the existence of Terms of Use would be clear in these circumstances.

    This leaves open some questions, in particular:
    - could ToU be implied for commercial websites?
    - would ToU have this assumed existence for a non-commercial websites? e.g. a blog?

    The other point I want to pick at in this case is that the judge notes that a particularly onerous term must be highlighted. Perhaps it's my misunderstanding, but a jurisdiction agreement seems rather onerous. Should this not have been directly brought to the party's attention? Am I wrong?
    - So even if the jurisdiction clause may be valid outside of an invalid agreement, the clause itself would not have been agreed, and thereby effectively invalid.

  2. Good questions James. As you say, the legal context in which this judgment arises is important - it involved a commercial entity which was extensively screenscraping the Ryanair site, and which no doubt had given some thought to their own legal position. As such, they were much less likely to be able to say that they were unaware of the terms of use. I wonder whether the same result would be reached if the litigation involved a consumer who used the site on a once-off basis.

    I found the analogy with bringing an item marked at €10 to the counter unhelpful - it's well established that the customer is this situation is not accepting an offer but making an invitation to treat, so I'm not sure what this adds to the analysis.