This important case pertained to the use of Ryanair’s website by online travel companies, who took data relating to pricing and flight times from various airlines and aggregated them together so as to reduce the legwork which had to be done by consumers to source the best flight.
The legal question at play here was purely a preliminary jurisdictional issue – ie, whether the Irish courts were the proper location for hearing the larger dispute between the two parties which pertained to copyright.
The information necessary to run Billifluege’s aggregator site was acquired by ‘screen scraping’. Moreover, the customer would also pay a higher price than if they had booked directly with the airline themselves. This is the essence of their business model, even though they claimed that they were not the ultimate sellers of the tickets and were simply acting as facilitators.
Ryanair claimed, amongst a number of other headings, a breach of their intellectual property rights. Terms and conditions published on their website claims that anyone who uses the site must abide by certain terms, clause number seven of which provided as follows:
‘Applicable law and jurisdiction. 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.
In the absolute and sole discretion of Ryanair, a legal action may be brought by Ryanair against any party in breach of these terms and conditions, at its election, in Ireland or the place of breach or the domicile of that party, and, if more than one party, in the domicile of any one of those parties, and all other parties shall submit to that jurisdiction.’
The operative law here, being the Brussels I Regulation (44/2001/EC), applies in civil and commercial matters, provides for a general rule that persons domiciled in a Member State shall be sued in the courts of that Member State, irrespective of their nationality. The prorogation of jurisdiction was possible under Article 23 which Ryanair sought to rely on:
- If the parties, one or more of whom is domiciled in a MS, have agreed that a court or the courts of a MS are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
It is worth noting that although it was not operative at the time this judgment was handed down, the Brussels I Regulation was recast in 2012 (1215/2012).
The Supreme Court upheld the finding of Hanna J at the High Court that the jurisdiction clause was binding on entrants to the site, particularly those like Billifluege who were gathering information from which would then be then put to use for commercial purposes. Accordingly, Ireland was the correct jurisdiction for litigating this dispute.
As Charleton J noted at para 44:
‘Article 2 of the Brussels I Regulation specifies that persons domiciled in a Member State should be sued in the courts of that state. Exceptions to this rule in Article 23 include an agreement on a different choice of jurisdiction between the parties. This can be arrived at through assent or through a custom within a relevant commercial area. In summary, Ryanair sought to demonstrate that such a choice had been made by virtue of clause 7 of its terms and conditions of use of its website, which specified that Ryanair could elect to take proceedings against any breach of those terms and conditions in Ireland, or elsewhere at its discretion. Ryanair argued that the appellant travel companies had agreed to those terms through the use of their website. The appellant travel companies argued that their customers were bound by those terms, and not the companies themselves.’
It is important to note that this is not a finding that a binding contract resulted from entry to the site, just that acquiescence to an agreement had been inferred regarding which jurisdiction would be the correct one for the purpose of resolving any potential disputes. It was also clarified that the balance of prof in respect of a dispute over consensus as to jurisdiction under the Brussels regime would be as against the balance of probabilities.
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