Ryanair Designated Activity Company v Skyscanner Ltd, Skyscanner Holdings Ltd, and Skyscanner 2018 Ltd

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Murray
• Judgment Date: 16 March 2022
• Neutral Citation: [2022] IECA 64
• Docket Number: Court of Appeal Record No. 2021/36

Between

Ryanair Designated Activity Company

Plaintiff/Appellant

and

Skyscanner Limited, Skyscanner Holdings Limited, and Skyscanner 2018 Limited

Defendants/Respondents

[2022] IECA 64

Donnelly J.

Haughton J.

Murray J.

Court of Appeal Record No. 2021/36

High Court Record No. 2019/9939 P

THE COURT OF APPEAL

CIVIL

Interlocutory injunction – Terms of use – Balance of justice – Appellant seeking an interlocutory injunction – Whether the appellant had established that it had a strong case that was likely to succeed

Facts: The plaintiff/appellant, Ryanair DAC, claimed that the defendants/respondents, Skyscanner Ltd, Skyscanner Holdings Ltd and Skyscanner 2018 Ltd, were acting unlawfully in deploying information obtained from its website for commercial purposes by allowing online travel agents (OTAs) to book flights for their customers. Following the institution of the proceedings, the plaintiff sought an interlocutory injunction. That injunction sought to require the defendants to prevent certain OTAs from providing what the plaintiff described as ‘false’ e-mail addresses for travellers on whose behalf they booked flights with the plaintiff. As expressed in the application, the plaintiff’s basic complaint was that when some of the OTAs book a flight with the plaintiff for a customer they do not give the plaintiff the e-mail or telephone number of that customer. Instead, they provide an e-mail address or telephone number created or operated by the OTA itself. The plaintiff claimed that this causes confusion and difficulties for the customer and for the plaintiff. The plaintiff sought – essentially – to oblige the defendants to require those OTAs to furnish the plaintiff with the personal email address or telephone number of the passenger on whose behalf they book flights with the plaintiff. The High Court (Twomey J) refused that application ([2020] IEHC 399). The resolution of the appeal to the Court of Appeal from that decision reduced itself to two core issues: first, whether the plaintiff had established that it had a strong case that was likely to succeed in that the actions of one or other of the defendants in affording access via the internet to the plaintiff’s price, flight and timetabling (PFT) information with a view to exploiting it for their own gain was unlawful having regard to the terms of use (TOU) of the plaintiff’s website; second – and if so – whether the balance of justice favoured the grant of orders of the kind sought in the application.

Held by Murray J that, having regard to the fact that the relief sought by the plaintiff in the application giving rise to the appeal was for what were in substance mandatory interlocutory orders, and to the consideration that no feature of the application had been identified that removed the application from the normal principles attending an application for such mandatory relief, the applicant could only succeed if it established that it had a strong and clear case that was likely to succeed at trial. Murray J held that the plaintiff had not established such a case insofar as its claim was based on the proposition that the licence agreement between it and the defendant remained in force. The plaintiff accepted that it had not established a claim that met that threshold insofar as its other causes of action were concerned, save in respect of the issue around the effect of the TOU. Murray J held that, in the abstract, the plaintiff’s claim that it was entitled to enforce the TOU to which visitors to its website agreed to be bound met that component of the criteria for the grant of a mandatory interlocutory order; this was especially the case given that the defendants were at all material times aware of the TOU, and that they had failed to provide any explanation to the court as to how they obtained the plaintiff’s PFT information. Murray J held that the defendants’ claim that the plaintiff abused a dominant position on point of origin/point of destination (O&D) route pairings by seeking to impose on users of its website preclusions on the commercial exploitation of PFT information obtained therefrom – while on the basis of the information before the court not shown by the defendants to be either clear or strong – raised a serious issue such as to lower the plaintiff’s claim on foot of those TOU beneath the threshold required to obtain mandatory interlocutory relief. Murray J held that the balance of justice favoured the refusal of the relief claimed.

Murray J held that the appeal should be dismissed.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 16 ^th day of March 2022

Issues

1 . The plaintiff is a well-known airline. It makes details of its flights available on its website. It says that it does so with the intent that seats on those flights will be booked through its website. It contends that those accessing information on that site agree not to use it for their own commercial purposes, and that third parties are precluded from exploiting such information so obtained for their own profit.

2 . The defendants are members of a group of companies. The group provides what the defendants describe as a ‘ meta search site’ affording a facility to search for, and compare the prices of, flights, hotels and travel-based services. The defendants include on that website details of the plaintiff's flights. Throughout, the parties describe these details as ‘ price, flight and timetabling’ information (‘PFT’). That information as presented on the defendants website, is derived from the plaintiff's website. Members of the public who obtain this information from the defendants' site may book seats on flights operated by the plaintiff either directly with the plaintiff, or through the agency of various online travel agents (‘OTAs’).

3 . In this action the plaintiff claims that the defendants are acting unlawfully in using the information obtained from its website in this way and, in particular, in deploying it for commercial purposes by allowing OTAs to thus book flights for their customers.

4 . Following the institution of the proceedings, the plaintiff sought an interlocutory injunction. That injunction did not seek to prevent the defendants from displaying the plaintiff's PFT for any particular purpose, nor did it seek to prevent the defendants from enabling OTAs to exploit the information contained on the defendants website and derived from the plaintiff's website. Instead, it sought to require the defendants to prevent certain OTAs from providing what the plaintiff describes as ‘ false’ e-mail addresses for travellers on whose behalf they book flights with the plaintiff. As expressed in this application, the plaintiff's basic complaint is that when some of the OTAs book a flight with the plaintiff for a customer they do not give the plaintiff the e-mail or telephone number of that customer. Instead, they provide an e-mail address or telephone number created or operated by the OTA itself. The plaintiff claims that this causes confusion and difficulties for the customer and for the plaintiff. In this application the plaintiff seeks – essentially — to oblige the defendants to require these OTAs to furnish the plaintiff with the personal email address or telephone number of the passenger on whose behalf they book flights with the plaintiff.

5 . Twomey J. refused that application ( [2020] IEHC 399). For reasons I explain in the course of this judgment, the resolution of this appeal from that decision reduces itself to two core issues. First, whether the plaintiff has established that it has a strong case that is likely to succeed in that the actions of one or other of the defendants in affording access via the internet to the plaintiff's PFT information with a view to exploiting it for their own gain is unlawful having regard to the terms of use (‘TOU’) of the plaintiff's website. Second – and if so — whether the balance of justice favours the grant of orders of the kind sought in this application.

Context

6 . The background is somewhat involved. The plaintiff styles itself as providing low cost air travel, deriving a significant proportion of its income from the sale of seats on its flights. It also obtains substantial income from the sale to its passengers of what are termed ‘ ancillary services’ such as car hire, hotel bookings, insurance, events, tours and other activities. The importance of the income the plaintiff obtains from the sale of these ancillary services is evident from the relationship it bears to its revenue from the sale of seats on its flights: according to its 2019 annual report the average price of a fare was €37 per passenger while that from the sale of ancillary services to those passengers was €17.15 per passenger. The plaintiff suggests in its evidence in this application that its income from these ancillary services assists it in providing low cost flights and it contends that by reason of the number of users of its website it is in a position to obtain good rates for its customers in respect of these third party products.

7 . The vast bulk of the plaintiff's bookings – 99% — are made via its website, the balance being purchased via its call centre, at the airports themselves or through licensed providers. Customers who purchase flights via the plaintiff's website must provide the plaintiff with their personal e-mail addresses or mobile telephone numbers. In that way the plaintiff is enabled to make direct contact with its customers both for the purposes of informing them of any matters relevant to their flight, but also to offer the ancillary services to them. One of the plaintiff's key commercial objectives is ensuring that the purchase of seats on its flights is effected exclusively through its website, while also obtaining the personal e-mail addresses or mobile telephone numbers of those travelling with it.

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