Ryanair Designated Activity Company v Skyscanner Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 30 July 2020
• Neutral Citation: [2020] IEHC 399
• Docket Number: [2019 No. 9399 P]
• Court: High Court
• Date: 30 July 2020

BETWEEN

RYANAIR DAC

PLAINTIFF

AND

SKYSCANNER LIMITED

SKYSCANNER HOLDINGS LIMITED

SKYSCANNER 2018 LIMITED

DEFENDANTS

[2020] IEHC 399

Twomey J.

[2019 No. 9399 P]

THE HIGH COURT

COMMERCIAL

Interlocutory injunction – Mandatory injunction – Balance of justice – Plaintiff seeking an interlocutory injunction against the defendants – Whether there were grounds for the grant of an interlocutory injunction

Facts: The plaintiff, Ryanair, applied to the High Court for an interlocutory injunction against the defendants, Skyscanner. In the substantive hearing, Ryanair sought an order restraining Skyscanner from facilitating the sale of Ryanair flights on the Skyscanner website by certain online travel agents (OTAs) that operate on that site. In the interlocutory injunction application, Ryanair sought to deal with those situations where a Ryanair flight is booked by an OTA for a passenger via the Skyscanner website between the present and the hearing of the main action. Ryanair sought an injunction obliging Skyscanner to require those OTAs, whose booking of a Ryanair flight has been facilitated by Skyscanner on its website, to provide Ryanair with the personal email address of the passenger, rather than an email address created by the OTA for the passenger in order to book the flight for that passenger. In seeking this injunction to ensure that OTAs on the Skyscanner website do not provide what Ryanair calls ‘fake’ email addresses for passengers, Ryanair wished to ensure that it can directly contact the passenger flying on its flight, rather than having, as its passenger contact, an email address of the OTA. In support of its application, Ryanair relied primarily on the inconvenience caused to passengers, who discover that they cannot pass the security identification procedure on the Ryanair website/with the Ryanair call centre using their booking reference and their personal email address.

Held by Twomey J that: the substance of the injunction sought by Ryanair, although expressed in prohibitive terms, was in substance a mandatory injunction; Ryanair had failed to establish that it had a strong case that it was likely to succeed at the hearing of the action for a permanent injunction against Skyscanner prohibiting it from facilitating the sale of Ryanair flights on its website (with the consequence that no email addresses, whether personal or OTA, would be provided for Ryanair flights); there were therefore no grounds for the grant of an interlocutory injunction, since the injunction sought was mandatory in substance; and even if the injunction was regarded in substance as a prohibitive injunction, the Court concluded that on the balance of justice an injunction requiring Skyscanner to oblige OTAs to provide personal email addresses was not justified, as Ryanair was in a position to alleviate the prejudice it claimed was being caused by the provision of OTA email addresses (i.e. by Ryanair using personal information other than a passenger’s personal email address to identify a passenger), the injunction was sought against Skyscanner, even though the primary target of the alleged prejudice to Ryanair were the OTAs who were providing the OTA email addresses to Ryanair, not Skyscanner, and, much of the alleged prejudice relied upon by Ryanair related to OTAs who do not use the Skyscanner website or related to incidents which occurred prior to 11th November, 2019, the date upon which the alleged unlawful facilitation of the sale of flights on the Skyscanner website began.

Twomey J refused to grant the interlocutory injunction sought by Ryanair and would hear counsel in relation to the form of the final order.

Application refused.

JUDGMENT of Mr. Justice Twomey delivered on the 30th day of July, 2020

SUMMARY

1 This case involves an application by the plaintiff (“Ryanair”) for an interlocutory injunction against the defendants (“Skyscanner”). The application was heard over six days. In the substantive hearing, for which a date has yet to be fixed, Ryanair seeks an order restraining Skyscanner from facilitating the sale of Ryanair flights on the Skyscanner website by certain online travel agents (“OTAs”), such as lastminute.com and kiwi.com, that operate on that site.

2 However, in this interlocutory injunction application, Ryanair seeks to deal with those situations where a Ryanair flight is booked by an OTA for a passenger via the Skyscanner website between now and the hearing of the main action. Ryanair seeks an injunction obliging Skyscanner to require those OTAs, whose booking of a Ryanair flight has been facilitated by Skyscanner on its website, to provide Ryanair with the personal email address of the passenger (e.g. seancitizen@gmail.com), rather than an email address created by the OTA for the passenger in order to book the flight for that passenger (e.g. seancitizen123@ota.com).

3 In seeking this injunction to ensure that OTAs on the Skyscanner website do not provide what Ryanair calls ‘fake’ email addresses for passengers, Ryanair wishes to ensure that it can directly contact the passenger flying on its flight, rather than having, as its passenger contact, an email address of the OTA. In support of its application, Ryanair relies primarily on the inconvenience caused to passengers, who discover that they cannot pass the security identification procedure on the Ryanair website/with the Ryanair call centre using their booking reference and their personal email address (e.g. seancitizen@gmail.com). This is because the passenger may not appreciate that his personal email address which he inputted on the Skyscanner website when making the booking was not used by the OTA in making the booking with Ryanair, but instead an OTA email address was used for this purpose (e.g. seancitizen123@ota.com).

4 In the course of making its application, Ryanair relied on several specific examples of frustration and inconvenience caused to passengers, which it claimed arose as a result of Ryanair not having access to the personal email address of the passenger. This inconvenience is caused by the passenger having to obtain from the OTA, if he/she does not already have it, the email address used for the booking. An example is the fact that a passenger with mobility issues encountered a delay in receiving confirmation that she would have assistance when boarding and disembarking the aircraft. This delay was due to the passenger not being able to confirm her identity initially, because when she first contacted Ryanair she did not have the OTA email address for the booking.

5 In seeking this interlocutory injunction, Ryanair relies on its claim in the main action that Skyscanner is benefiting from what it says is unlawful ‘screen scraping’ of Ryanair's website in order to display Ryanair's flight information on the Skyscanner website. Screen-scraping is the practice of using software to interact with a website in order to extract and use for commercial gain information from that website (in this instance price, flight and timetables (“PFT”)).

6 Ryanair also relies on its claim in the main action that Skyscanner is unlawfully facilitating on its website the sale of Ryanair flights by OTAs in direct contravention of the Terms of Use of the Ryanair website. These Terms of Use provide that the Ryanair website is the only website authorised to sell Ryanair flights. In addition, Ryanair claims in the main action that Skyscanner is in breach of a price comparison licence agreement dated 11th April, 2011 entered into by Ryanair and Skyscanner (the “Licence”).

7 Against this background, Ryanair is seeking what it claims is the foregoing ‘limited’ interlocutory injunction pending the trial, in order to ensure that if its flights are going to be sold (unlawfully, in its view) via the Skyscanner website until the trial, that Ryanair should (at least, in Ryanair's view) receive the personal email addresses for passengers, rather than receiving OTA created email addresses for those passengers.

8 For its part, Skyscanner claims that the Licence has been terminated and that the term ‘screen-scraping’ is meant to demonise something which is lawful, namely the systematic obtaining, compilation and use of data which is voluntarily put into the public domain by Ryanair.

9 The legality or otherwise of ‘screen-scraping’, the alleged termination of the Licence and the alleged unlawful facilitation of sales of Ryanair flights on the Skyscanner website are matters for the trial judge and it is not necessary for the determination of the within application to consider the legality of same.

10 While Ryanair laid particular emphasis, in making this application, on the inconvenience and frustration to passengers, for its part Skyscanner emphasised the importance of personal email addresses to Ryanair in order for Ryanair to market ancillary services to passengers, such as car hire, hotels etc. Skyscanner claims that Ryanair does not wish to lose the significant revenue from ancillary services to OTAs (who will have those personal email addresses of passengers and thus will be in a position to market those ancillary services to them).

11 This Court rejects Ryanair's application for an injunction for the reasons set out below, including that the inconvenience to passengers, upon which Ryanair relies in seeking this injunction, can be alleviated by Ryanair itself (e.g. by Ryanair confirming the identity of passengers by using a date of birth or other personal identification information for those who do not have the OTA email address for the booking). In addition, Ryanair could itself lessen the inconvenience which is caused to passengers by not using Chatbots (computer software that simulates human responses) to communicate with passengers. Accordingly, this Court finds that inconvenience (and the other prejudice relied upon by Ryanair) is not sufficient for this Court to conclude that the balance of...