Showing posts with label terms of use. Show all posts
Showing posts with label terms of use. Show all posts

Wednesday, February 29, 2012

More Ryanair litigation against flight resellers - this time with a data protection twist

You might have noticed that Ryanair is busy with litigation against services which screenscrape flight details from its site or act as resellers of its flights. (Previously on this blog 1|2|3|4|5.) Usually those cases have centered on arguments that this activity amounts to a breach of either Ryanair's intellectual property rights in their site or their terms of use. However Ryanair has now added an interesting data protection dimension to its claims in a fresh action against Club Travel. From today's Irish Times:
RYANAIR HAS claimed before the High Court that details about people who book its flights through a package holiday website can be seen by other travellers.

The airline is seeking an injunction stopping Club Travel from selling its flights on the grounds that it amounts to wrongful interference with its copyright and database. Club Travel denies the claims. Because of the way Club sells the flights, customers who book through it have access to information about other travellers’ flights and know when they will be out of the country, Ryanair alleges.

Club customers, it claims, are told not to input their own email address but a specific address which belongs to Club. As a result, Club customers may access details of other passengers who booked flights the same way, Martin Hayden SC, for Ryanair, argued.

This gives access to information about when other people who booked the flight are abroad and when their homes are unoccupied, counsel said.

Ryanair said it was also concerned that, for the cost of changing a name on a flight, a person who has such access can change the name, address and passport details on another traveller’s flight and obtain that person’s boarding card, he said.

These were serious data protection issues which could expose Ryanair to penalties, he said.

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                                                            

Monday, March 01, 2010

Ryanair screenscraping: Irish court accepts jurisdiction, rules on enforceability of website terms of use

You might have noticed that Ryanair has an ongoing legal campaign to stop sites from scraping its content and then reselling flights. (Blogged previously by me: 1|2|3.)

Until now, however, Ryanair found itself stymied by jurisdictional problems, and in two separate decisions the Irish High Court held that it did not have jurisdiction to hear its claims. (The first decision saw Ryanair thwarted by its own terms of use which provided for the English courts to have jurisdiction; the second involved prior Swiss proceedings which caused the Irish court to decline jurisdiction in favour of the Swiss court.)

In the most recent development in this saga, Ryanair has now amended its terms of use to provide for the exclusive jurisdiction of the Irish courts, and has succeeded in establishing jurisdiction in Dublin in an action against Billigfluege and Ticket Point. According to the Irish Times Hanna J. held as follows:
The exclusive jurisdiction clause contained in [Ryanair’s] website’s terms of use was binding on [Billigfluege and Ticket Point] in circumstances where those terms were at all times available for inspection by [Billigfluege and Ticket Point] as users of or visitors to the website, [Ryanair] having taken appropriate steps to ensure that the terms were brought to the user’s attention through their inclusion on the website via a clearly visible hyperlink.

If you use the site, you agree not to breach its terms and if you do so, the exclusive jurisdiction clause set out in the Terms of Use makes it clear that Ireland is the appropriate jurisdiction for the purposes of litigating any disputes that may arise as a result.
The full decision isn't available online yet, but from this excerpt it may be very significant indeed.

This appears to be the first time an Irish court has ruled on whether site terms of use are enforceable, and the passage quoted seems to adopt a very wide browsewrap theory whereby visitors to a website will be bound by terms of use without any positive act on their part, provided that a hyperlink to the terms is "clearly visible". I'm not entirely sure that this result is correct - as Andres Guadamuz notes in a similar context, there are issues of acceptance and consideration in these cases - and it will be interesting to read the full decision to see whether and how these issues are considered.

The potential implications of this decision are also important. If the broad approach above is followed it would appear to have the potential to eliminate screenscraping entirely, and to enable site owners to assert exclusivity over information which is not protected by copyright or database right - in effect creating a new quasi intellectual property right and upsetting the balance created by statute. (Just witness the Dublin Bikes iPhone app case.) Hopefully if this case goes to a full hearing we will see these points raised and considered in detail.