Ryanair dac v SC Vola.ro srl

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní
• Judgment Date: 14 January 2019
• Neutral Citation: [2019] IEHC 239
• Court: High Court
• Docket Number: [Record No. 2017/8782P]
• Date: 14 January 2019

BETWEEN

RYANAIR DAC

Plaintiff

-and-

SC VOLA.RO SRL

Defendant

[2019] IEHC 239

Ní Raifeartaigh J.

[Record No. 2017/8782P]

THE HIGH COURT

Jurisdiction – Regulation (EU) 1215/2012 – Place of domicile – Defendant contesting the jurisdiction of the Irish courts to hear and determine the substantive case of the plaintiff – Whether Romania was the proper jurisdiction in which to hear all of the plaintiffs’ claims

Facts: The defendant, SC Vola.ro srl, an online travel agent, brought a motion contesting the jurisdiction of the Irish courts to hear and determine the substantive case of the plaintiff airline, Ryanair dac. Ryanair was domiciled in Ireland and Vola in Romania. The case therefore raised issues relating to Regulation (EU) 1215/2012. The defendant claimed that Romania was the proper jurisdiction in which to hear all of the plaintiffs’ claims, following the general rule under Article 4 of the Regulation which provides that a defendant should be sued in its place of domicile. The plaintiff sought to displace the general rule in Article 4 and relied upon Articles 7(1) and (2) as well as Article 25(1)(a) and (c) of the Regulation.

Held by the High Court (Ní Raifeartaigh J) that although the evidence and facts were slightly different to those pertaining in Ryanair v On the Beach [2015] IESC 11, the reasoning of the High Court (Laffoy J) in that case (approved on appeal by the Supreme Court) applied with equal force, and the conditions of Article 25(1)(c) were satisfied i.e. there was an agreement as to jurisdiction between the parties which was effected through a click-wrapped agreement, this being a form of agreement which accords with a usage in international trade or commerce of which the parties were aware or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contacts of the type involved in this particular trade or commerce. Ní Raifeartaigh J held that insofar as the evidence established that Vola’s interaction with the Ryanair website may have arisen in circumstances where the “white box” was never ticked or was ticked automatically by the system, that situation seemed to her to fall short of an agreement as to jurisdiction “in writing or evidenced in writing” within the meaning of Article 25(1)(a). Ní Raifeartaigh J intended to depart from the reasoning of Laffoy J in the On the Beach case and to conclude that the plaintiff had discharged the burden of proof to show that the case fell within Article 7(1) of the Regulation. Ní Raifeartaigh J held that despite the fact that the plaintiff did go considerably further than it did in the On the Beach case to identify the evidential underpinnings of each tort claims, and to clarify the relationship between those facts and Article 7(2), she was not satisfied that there had been adequate argument before her (from either side) as to how it was alleged that Ireland was the place “where the harmful event occurred or may occur” as that phrase has been interpreted in the European authorities.

Ní Raifeartaigh J held that she would refuse the relief sought in the defendant’ motion.

Relief refused.

Judgment of Ms. Justice Ní Raifeartaigh delivered on the 14th of January, 2019

Nature of the Case

1 The Court, in this judgment, is concerned with a motion brought by the defendant, an online travel agent in Romania, contesting the jurisdiction of the Irish courts to hear and determine the plaintiff airline's substantive case. Ryanair is domiciled in Ireland and the defendant Vola in Romania. The case therefore raises issues relating to Regulation (EU) 1215/2012 (‘the Regulation’). The defendant claims that Romania, its domicile, is the proper jurisdiction in which to hear all of the plaintiffs” claims, following the general rule under Article 4 of the Regulation which provides that a defendant should be sued in its place of domicile. The plaintiff seeks to displace the general rule in Article 4 and relies upon Articles 7(1) and (2) as well as Article 25(1)(a) and (c) of the Regulation.

2 The plaintiff's substantive case involves claims of breach of contract, breach of copyright and database rights, passing off, infringement of trademark, trespass to property/goods and conversion. The plaintiff claims that the defendant committed those legal wrongs by using information obtained (or ‘scraped’) from the Ryanair website in real time regarding flight times and prices and subsequently selling and booking the plaintiff's flights at an inflated price by interposing its website between the passengers of the plaintiffs and the plaintiff's website. The defendant denies that it uses Ryanair's website in any manner whatsoever and asserts, inter alia, that any data it obtains from the plaintiff comes from legitimate third parties who have prior arrangements with the plaintiffs.

3 A central feature of the defendant's case as presented on affidavit and in written submissions was that this case was distinguishable from previous authorities involving Ryanair and screen-scraping because the defendant Vola did not in fact interact with the Ryanair website in any way but rather sourced Ryanair data from third party service providers who obtain this information legitimately from Ryanair.

4 An alternative argument was put forward at the oral hearing, namely that even if the Court was to find that Vola was interacting with the Ryanair website, such interaction as could be demonstrated did not establish that there had been assent to the Terms of Use by ‘click-wrapping’ as arose in other cases, because there was an element of ‘auto-ticking’ by the Ryanair system as distinct from manual ticking by the user.

5 The Court is mindful that it must be careful not to conflate issues of jurisdiction and substance; and that it should not go beyond the appropriate parameters of fact-finding when the issue arising is one of jurisdiction. Nonetheless, it seems to me that this is one of those cases in which it is inevitable that the Court must engage to some degree in fact-finding before applying the relevant principles of law to the facts so found. The facts include some technical matters relating to the Ryanair and Vola websites.

Glossary of Terms

6 Given that the evidence on affidavit contained some jargon particular to the online travel industry and the technical aspects of such websites, a brief glossary of terms is appended to this judgment. The explanations of the terms or acronyms there are derived by me from the affidavits in this case and any errors therein are therefore mine.

The relevant EU Regulation

7 The Regulation the provisions of which were in issue before me was Regulation (EU) 1215/2012. Many of the authorities opened to me concerned predecessors to these Regulations; namely, the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, the 1988 Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, and Regulation (EC) No 44/2001. For ease of reading, I refer to those earlier Conventions, Regulations and Articles in generic terms such as ‘the predecessor Regulations’ or ‘the predecessor to the current Article 7’ rather than by specific title or number.

Terms of Use on the Ryanair Website

8 Central to this case are the Terms of Use of the plaintiff's website. It is not in dispute that these Terms of Use are available for inspection on each page of the Ryanair website by way of hyptertext link. Ryanair also sent them to Vola under cover of a letter dated 19th September, 2017.

9 I have italicised certain passages of the Ryanair Terms of Use for emphasis:-

‘General [Clause 1]

The owner of this website is Ryanair DAC, an Irish company…By using this website or its content, whether directly or through a third party, you agree to be legally bound by and act in accordance with these Terms of Use. In particular you agree not to do the acts prohibited under paras 3 to 5 below. If you disagree with these Terms of Use, you are not permitted, and agree not to, use this website or its content.

Exclusive online distribution channel. [clause 2]

This website is the only website authorised to sell Ryanair flights, whether on their own or as part of a package. Price comparison websites may apply to enter into a written Licence Agreement with Ryanair, which permits such websites to access Ryanair's price, flight and timetable information for the sole purpose of price comparison.

Permitted use. [clause 3]

You are not permitted to use this website (including mobile app and any webpage and/or data that passes through the web domain at Ryanair.com) its underlying computer programs (including the application programming interfaces (‘APIs’)) domain names, Uniform Resource Locators (‘URLS’) databases, functions or its content other than for private, non-commercial purposes. Use of any automated system or software, whether operated by a third party or otherwise, to extract any data from this website for commercial purposes (‘Screen scraping’) is prohibited. Ryanair reserves its right to take such action as it considers necessary, including issuing legal proceedings without further notice, in relation to any unauthorised use of this website

Intellectual Property. [clause 4]

All information data, underlying computer programs (including APIs), domain names, URLS, databases, and materials presented on this website, including names, logos, flight schedules, prices, etc. as well as the colour scheme and the layout of the website are subject to copyright, trade mark rights, database rights and/or other intellectual property rights. You may use such content as strictly required for permitted personal, non-commercial purposes. Any other use and/or reproduction of such content, without prior written consent of Ryanair, is prohibited and will constitute a breach of these Terms of US and may...