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.

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

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.

JC Decaux should backpedal on iPhone app threat

I'm quoted in today's Irish Times on the threats made by JC Decaux against Fusio resulting in their taking down their Dublin Bikes App.

Leave aside for a moment the PR stupidity of this strategy.

Ignore if you will the dubious legal basis of their claim. (Without going into the finer points of copyright in facts, database rights, clickwrap agreements or possible passing off, the vague nature of their complaint - "Following our conversion, I confirm that you do not have the rights to use the information published on the web site http://www.dublinbikes.ie/. In particular the data concerning the stations is the property of JCDecaux and cannot be used without our prior authorisation" - makes it clear that they have little idea what they are talking about.)

Think instead about the issue of principle. A body which is operating in partnership with Dublin City Council is attempting to stop an Irish company from providing - free of charge - facts to the public about the service which they offer, without giving any justification for doing so, and without offering an alternative of their own. (I'm happy to see that at least some of our politicians understand the absurdity of this.)

I spoke to the press office in Dublin City Council today, who made it clear that they regard this matter as nothing to do with them. But why not? DCC were happy to work with Fusio to develop the app. Is there no provision in their contract with JCD establishing an obligation to provide information to the public about the service? Will they make sure that future contracts address this type of situation? (And - while I'm on the topic of the contract - why does JCD own the domain dublinbikes.ie? Is there any provision in the contract for the domain to revert to DCC on its expiry?)

Ryanair screen scraping: New litigation

I've blogged before about Ryanair's case against Travelfusion and Bravofly in respect of screen scraping. According to RTE News, this case has now been joined by a fresh set of proceedings in the High Court by Ryanair against Ticketpoint, Reisebuero and Billigfluege, alleging that they are using screen scraping to resell Ryanair tickets at higher prices.

According to the news report, Ryanair is complaining that the three companies are "applying a service charge and credit card charges to the prices". I wonder who they got that idea from?

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.")