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.