Ryanair Dac v Skyscanner Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Quinn |
| Judgment Date | 09 December 2022 |
| Neutral Citation | [2022] IEHC 696 |
| Court | High Court |
| Docket Number | Record No. 2019/9399 P |
and
[2022] IEHC 696
Record No. 2019/9399 P
THE HIGH COURT
COMMERCIAL
Judgment of Mr. Justice Quinn delivered the 9th day of December 2022 (Strike Out and Modular Trial)
The plaintiff claims that the defendants are engaged in activities, principally known as “screen scraping”, which is described as the unauthorised use of automated systems of software to access price, flight and time (“PFT”) data from the plaintiff's website and its underlying computer programmes for the sale or facilitating the sale of the plaintiff's products and services via the defendants' website. The plaintiffs allege breach of contract, infringement of trademarks, breach of copyright, passing off, conversion, conspiracy and other torts.
The defendants deny that they are engaged in such activity. They claim in their defence and counterclaim that if and insofar as they are engaged in such activities, the plaintiff is precluded from maintaining any cause of action or seeking any relief in respect thereof by reason of abuse of a dominant position in certain markets in contravention of Article 102 on the Treaty on the Functioning of the European Union (“TFEU”).
This judgment relates to two applications made by the plaintiff as follows.
Firstly, the plaintiffs have applied for an order pursuant to O. 19, r. 27 and/or r. 28 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court striking out the defendants' counterclaim and aspects of the defence which rely thereon on the basis that it is inconsistent with the defence and/or contains mutually exclusive pleas.
The plaintiff complains that on the one hand, the defendants traverse the plaintiff's claims, and deny that they are engaged in screen scraping the plaintiff's websites and/or selling its flights on its website, and at the same time, by the counterclaim, allege that the plaintiff has breached Article 102 of the TFEU by not sharing its flight data for purposes other than price comparison. The plaintiff says that the defendants are seek an order in the counterclaim to protect it from doing that which it has denied it is doing.
The plaintiff says that this is so fundamentally inconsistent that the court should now strike out or stay the counterclaim, and those aspects of the defence which rely on Article 102.
The second application (although initiated first in time) is an application by the plaintiff for an order pursuant to O. 63 A and/or O. 36, r. 9 directing a modular trial of the action. It proposes a Module One, which would determine what are referred to as “liability issues” and a Module Two, referred to as “competition law issues”. The plaintiff says that an order for a modular trial is only required if the counterclaim survives the application to strike it out.
I have decided to refuse both applications.
In 2011, the parties entered into a Licence Agreement under which the plaintiff granted to the defendant a licence to access its PFT data it says, “for the sole purpose of comparing Ryanair's flight prices with those of other airlines”.
The plaintiff does not say precisely when this agreement was entered into, other than to say it was entered into between April and September 2021. Before the court is a copy of a licence agreement signed on behalf of the parties on 11 April 2011.
The agreement recites that the plaintiff is engaged in the business of operating an airline and is the exclusive distributor of its goods and services through its websites and call centres. It recites that the plaintiff is the registered proprietor and beneficial owner of its websites and databases and all of their content, intellectual property rights, and the design, layout and operational know – how relating to its database. It recites that the “Price comparison website”, which is the defendant, is engaged in the business of comparing prices of flights, hotels and other travel products through the internet, and does not sell or purport to sell flight tickets.
The agreement recites that it is entered into on the condition that the defendant “will only use the information acquired under this agreement for price comparison purposes. It does so on the basis that it will not use that information to sell Ryanair flights or for any purpose other than to compare the price of Ryanair's flights with those other airlines”.
By the operative part of the agreement, the plaintiff granted to the licensee “A non – exclusive licence to access information hosted on www.ryanair.com and www.bookryanair.com on Ryanair's prices, flights and timetables (the “PFT) to enable the licensee to use that information for price comparison services only.”
The licence contains a provision at Paragraph 1.4 to the following effect:—
“It is understood that the licensee, in its business as a price comparison website, will distribute the PFT to prospective consumers directly via the licensee's own website”.
The licence agreement permitted the defendants to access the plaintiff's PFT data in accordance with specified procedures and restrictions including, according to the plaintiff, the fundamental restriction that the data be used for no purpose other than that of a price comparison website. The access was facilitated through a device known as an Application Programming Interface (“API”).
It appears from the pleadings that there will be a dispute at the trial of the action as to the precise meaning of certain provisions of the licence agreement and as to whether and in what circumstances the licence agreement was terminated in 2019.
During the course of 2019, a dispute arose between the parties on an unrelated subject, namely Ryanair's dissatisfaction with the manner of its rating on the defendants' “Greener Choice” platform, a feature by which the defendants publish comparative information regarding sustainability of the operations of airlines by reference to CO2 emissions and other sustainability criteria.
This dispute reached a critical point in November 2019. On 4 November 2019 the plaintiff notified the defendants that unless they updated the “CO2 filters so it presents accurate results or turned it off”, it would be making the API connection unavailable from Monday, 11 November 2019.
Skyscanner rejected the plaintiff's complaints regarding its rating process and called on the plaintiff to confirm that it would not terminate the API access on 11 November 2019.
The parties are in disagreement as to whether and the mode by which or by whom the licence agreement was terminated. However, the correspondence exchanged is said by the plaintiff to be significant in that the defendants informed the plaintiff by letter dated 11 November 2019 that it had “no option but to commence using alternative means to access information relating to Ryanair flights”.
The plaintiff warned the defendants that it believed that screen scraping activity, which it described as “directly or indirectly extracting flight data from the Ryanair website via unauthorised channels” was in breach of the licence agreement and in breach of the terms of use (“TOUS”) of its website, to which it said that the defendant had adhered. The plaintiffs also confirmed in a letter of 22 November 2019 that it “continued to make a dedicated API available to Skyscanner, which facility of course would be subject to its terms and conditions and restrictions as to use,” broadly reflecting those in the licence agreement. In response to this correspondence, the defendant denied that its access or use of Ryanair flight information was unlawful and stated that it was of the view “that any restriction of consumer access to Ryanair flight information via its marketplace materially decreases choice and transparency for consumers and negatively impacts competition”.
In a further letter dated 25 November 2019, the defendants asserted that the plaintiff had terminated their permission to access the API by a termination of the licence agreement and informed the plaintiff that they had “commenced accessing Ryanair flight data from third party sources as and from the date Ryanair's termination of the licence agreement took effect”, said by the defendants to be 11 November 2019.
By letter dated 26 November 2019, the plaintiff stated that it was willing to make API access available to Skyscanner for as long as the defendants complied with its TOUs and the licence agreement.
This impasse between the parties continued and on 5 December 2019 these proceedings were commenced.
In the statement of claim delivered on 2 February 2020, the plaintiff alleges the following:—
“The defendant is a price comparison website which compares inter alia Ryanair flights with those of other airlines and when a user selects a Ryanair flight, it redirects, or is required at least under the original licence agreement, to redirect that user to Ryanair's website where the user purchases the flight, and ancillary services such as hotels, car rental, onward travel, airport services, seat booking etc.”
Para. 6 of the statement of claim contains a “Complaint Summary”:—
“Skyscanner, whether in its own right or vicariously on behalf of any of its servants or agents or as joint adventurer or co – conspirator for value, is liable to Ryanair for wrongs done arising out of its involvement in screen scraping type activities (sometimes referred to as “web scraping” or “web harvesting”) vis a vis Ryanair's website (defined below) and in offering Ryanair products or services for sale, other than via Ryanair's website (“the relevant activities”).
Without prejudice to the generality of the foregoing, at a basic technical level, the screen scraping aspect of...
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