Ryanair Ltd v Billigfluege.De GmbH

JurisdictionIreland
JudgeMr. Justice Michael Hanna
Judgment Date26 February 2010
Neutral Citation[2010] IEHC 47
CourtHigh Court
Date26 February 2010

[2010] IEHC 47

THE HIGH COURT

Record No. 7959P/2009
Ryanair Ltd v Billigfluege. DE GmbH

Between

RYANAIR LIMITED
Plaintiff

- and -

BILLIGFLUEGE.DE GmbH
Defendant

EUROPEAN COMMUNITIES (CIVIL & COMMERCIAL JUDGMENTS) REGS SI 52/2002

EEC REG 44/2001 ART 2

EEC REG 44/2001 5(1)

EEC REG 44/2001 ART 5(3)

EEC REG 44/2001 ART 23

EEC REG 44/2001 ART 23(1)

RYANAIR LTD v BRAVOFLY & TRAVELFUSION LTD UNREP CLARKE 29.1.2009 IEHC 41

ESTAS SALOTTI v RUA 1976 ECR 1831

BENINCASA v DENTALKIT 1997 ECR 1 6767

TRANSPORTI CASTELLETTI SPEDIZIONI UNTERNAZIONALI SA v HUGO TRUMPY SPA 1999 ECR 1/597

DECKER v CIRCUS CIRCUS HOTEL 49 F SUPP 2 D 743

CASPI v MICROSOFT CORP 323 N.J SUPER 118 732 A. 2d 528

SPECHT v NETSCAPE 306 F. 3d 17

FORREST v VERIZON COMMUNICATIONS INC 805 A 2d 1007

REGISTER.COM INC v VERIO INC 356 F.3D 393

INTERFOTO PICTURE LIBRARY LTD v STILETTO VISUAL PROGRAMMES LTD 1989 QB 433

THORNTON v SHOE LANE 1971 2 WLR 585

INTELLECTUAL PROPERTY

Copyright

Jurisdiction - Dismiss for want of jurisdiction - Breach of copyright - Screen scraping - Initiation of proceedings - Domicile - Exceptions to rule of domicile - Exclusive jurisdiction clause - Terms of use on website - Interpretation - Whether terms of use constituted agreement - Whether enforceable contract - Whether unilateral proposal of terms on website - Whether consideration provided - Whether consensus between parties -Whether exclusive jurisdiction clause severable from disputed agreement - Whether use constituted assent to jurisdiction - Ryanair Ltd. v Bravofly and Travelfusion Ltd [2009] IEHC 41; Estas Salotti v Rua [1976] ER 1831; Benincasa v Dentalkit [1997] ECR 1 6767; Soc. Trasporti Castelletti Spedizoni Internazionali SA v Hugo Trumpy Spa [1999] ECR 1 597; Decker v Circus Circus Hotel 49 F Supp 2 (USA); Caspi v Microsoft Corporation 323 NJ Super 118 732A 2d 528, Specht v Netscape 306 F 3d.17, Register.com Inc v Verio Inc. 356 F 3d 393, Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433; Thornton v Shoe Lane [1971] 2 WLR 585 and Minister for Agriculture v Alte Leipzier [1998] IEHC 45 considered - European Communities (Civil and Commercial Judgments) Regulations, S.I. 52 0f 2002 - Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 Regulation (E.C.) No. 44/2001, arts. 2 and 23 - Application to dismiss refused (2009/7959P - Hanna J - 26/02/2009) [2010] IEHC 47

RyanAir Ltd v Billifluege.de Gmbh

Facts These proceedings were heard in tandem with related proceedings bearing Record No. 7960P/2009 and entitled Ryanair Limited v Ticket Point Reisebro GmbH. The defendants in both sets of proceedings brought an application to have the plaintiff's proceedings dismissed for want of jurisdiction by virtue of the provisions of Regulation 44/2001 (the Brussels Regulation) as transposed into Irish law by S.I. No. 52 of 2002. The defendants relied on Article 2 of the Brussels Regulation which provided that a defendant ought to be sued in its own domicile, in this case Germany. The plaintiff's claim against the defendants was that the price comparison website ran by the defendants breached the plaintiff's website's Terms of Use, trademark, copyright and database rights. The plaintiff relied upon paragraph 7 of the Terms of Use which provided that the courts of Ireland were to have exclusive jurisdiction in respect of any dispute. The defendants claimed that there was no contract in existence between the parties because there was acceptance and no consideration and the terms of use were nothing more than a set of unilaterally imposed conditions which they never agreed to. The plaintiff argued that the terms of use were clearly visible to all visitors to and users of their website and the defendants were making use of the website for their own commercial advantage and that use constituted an unambiguous manifestation of assent to its terms.

Held by Hanna J. in refusing the applications: That the defendants' argument that one cannot imposed certain unilateral terms was not an accurate description of the law on contract. The exclusive jurisdiction clause herein was contained in the Terms of Use on the plaintiff's website, highlighted by way of a hyperlink. In those circumstances, the Terms of Use were fairly brought to the attention of the defendants as users of the plaintiff's website. The Terms of Use constituted a contractual document entered into by the parties and in respect of which consideration was provided by the plaintiff in the making available of information for use by the defendant. Consequently, the exclusive jurisdiction clause contained within the Terms of Use was also binding. Furthermore, the plaintiff was not required at this stage to show the existence of a valid agreement once it was shown that there was an assent to jurisdiction.

Reporter: L.O'S.

1

Judgment of Mr. Justice Michael Hanna dated the 26th day of February, 2010

2

On Friday the 12 th day of February, 2010 I informed the parties that I was finding for the Plaintiff who is the Respondent in the motion relating to a preliminary jurisdictional issue brought by the Defendant. I said I would give my detailed reasons later and I now do so. These proceedings were heard in tandem with related proceedings bearing Record No. 7960P/2009 and entitled Ryanair Limited v. Ticket Point Reisebüro GmbH. In both sets of proceedings, the defendants brought an application to have the plaintiff's proceedings dismissed for want of jurisdiction by virtue of the provisions of Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters ("the Brussels Regulation") as transposed into Irish law by the European Communities (Civil and Commercial Judgments) Regulation, S.I. No. 52 of 2002. It is with that application which this judgment is concerned.

3

The defendants rely on Article 2 of the Brussels Regulation which provides that a defendant should be sued in its own domicile. The defendants in these proceedings are German based and say that they should be sued in Germany, not in Ireland. The plaintiff claims that while the general rule is that a defendant should be sued in their domicile, a number of exceptions to that general rule exist and in this regard the plaintiff seeks to rely on Articles 5(1), 5(3) and 23.

4

The only issue I have to determine at this juncture therefore is whether or not this Court has jurisdiction to hear these proceedings pursuant to the Brussels Regulation.

The Plaintiff's Claim
5

The plaintiff claims the service offered by the defendants, whereby they run a price comparison website allowing users of their site to compare prices for flights, breaches the plaintiff's website's Terms of Use, trademark, copyright and database rights in that it takes information from the plaintiff's site, an activity known as "screen-scraping", and provides that information to its users for a fee. All of this is done without the permission of the plaintiff and, according to the plaintiff, in breach of its website' Terms of Use.

6

One of the issues which may ultimately fall to be determined by this Court if the plaintiff overcomes the initial hurdle of defeating the defendant's jurisdiction application, is whether or not the plaintiff's website's Terms of Use constitute a valid and legally binding contract which was entered into by the defendant's through their use of the said website. The plaintiff says, however, that in order to determine the jurisdiction issue, it is not necessary for the Court to adjudicate upon the validity of the Terms of Use but rather it shall be sufficient if the Court is satisfied as to the existence of a valid exclusive jurisdiction clause set out within that document. The plaintiff in this regard relies upon paragraph 7 of the Terms of Use which provides that the courts of Ireland are to have exclusive jurisdiction in respect of any dispute.

The Defendant's Case
7

The defendants claims that there is no contract in existence between the parties and that the plaintiff's Terms of Use lack contractual effect because they were never agreed or consented to by the defendants.

8

The defendants say the plaintiff's website's Terms of Use cannot form the basis of a contract because all of the traditional features of a legally binding contract are absent such as the date on which it may be said that a contract was entered into between the parties and the absence of any consideration. They say that as there is no legally enforceable contract in place between the parties to these proceedings, the plaintiff cannot rely on Article 23(1) of the Brussels Regulation to confer jurisdiction on this Court because of the absence of an agreement.

The Brussels Regulation
9

Article 23 of the Brussels Regulation provides:

"If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State 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." (Emphasis added)

10

If Ryanair's website's Terms of Use can be said to be an "agreement", then the parties are in legal relationship and the dispute that has arisen from the use of Ryanair's website falls to be governed by the exclusive jurisdiction clause contained within that agreement.

The Case-law
11

In Ryanair Ltd. v. Bravofly and Travelfusion Ltd. [2009] IEHC 41, the second named defendant brought an application to dismiss the proceedings against it for want of jurisdiction under the Brussels Regulation. Travelfusion was based in the UK and the relevant jurisdiction clause in Ryanair's...

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