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
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"
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.
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.