Ryanair Ltd v Unister GmbH & Aeruni GmbH

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Gilligan
• Judgment Date: 22 March 2011
• Neutral Citation: [2011] IEHC 167
• Court: High Court
• Date: 22 March 2011

[2011] IEHC 167

THE HIGH COURT

[No. 7499 P/2009]

Ryanair Ltd v Unister GmbH & Aeruni GmbH

BETWEEN

RYANAIR LIMITED

PLAINTIFF

AND

UNISTER GmbH

FIRST NAMED DEFENDANT

AND

AERUNI GmbH

SECOND NAMED DEFENDANT

EMI RECORDS v EIRCOM 2005 4 IR 148

EEC REG 44/2001 ART 5(1)

EEC REG 44/2001 ART 5(3)

EEC REG 44/2001 ART 2(1)

RYANAIR v BRAVOFLY UNREP CLARKE 29.1.2009 2009/50/12462 2009 IEHC 41

PRACTICE & PROCEDURE

Discovery

Contact details of third party - Litigation in Germany - Joinder of party - Whether court had jurisdiction to direct disclosure - Challenge to jurisdiction under Brussels Regulation - Whether grant of relief amounting to relief in substantive case - Prima facie evidence of wrongful activity on plaintiff's website - First defendant attempt hide behind activities of service provider - Identity of service provider revealed by defendant in German proceedings - EMI Records (Ireland) Ltd v Eircom Ltd [2005] IEHC 233 [2005] 4 IR 148 and Ryanair Ltd v BravoflyLtd [2009] IEHC 41 (Unrep, Clarke J, 29/1/2009) considered - Brussels I Regulation, Council Regulation EC No 44/2001 - Application granted (2009/7499P - Gilligan J - 22/3/2011) [2011] IEHC 167

Ryanair Ltd v Unister GmbH

Facts The plaintiff was an airline company and had a website for the purposes of customers booking flights. The first defendant was a limited liability company established in Germany and operated as a online travel and Internet portal business. The plaintiff contended that its website was being accessed by the defendants and information taken from it which was then used for the purpose of selling the plaintiff's flights to customers. It was submitted that the defendants were in breach of database and copyright rights and were engaged in passing off its search and booking services available through their websites as being connected with the plaintiff. The first defendant claimed that at all times it was the consumer that was the party transacting the business with the airline's website and that the first defendant was simply acting as agent and technology provider for such a consumer. The plaintiff brought an application for a direction that the first named defendant disclose the details of the "third party provider" (Ytsilon.netAG) to enable it to join it to the proceedings. In dispute was also as to whether the case should be litigated in the Republic of Ireland or in another jurisdiction in circumstances where there was as of yet an undecided pending challenge to jurisdiction under the Brussels Regulation. The first defendant submitted that insofar as their activities could be said to be "harmful events" within the meaning of Article 5(3) of the Brussels I Regulation, it was clear that those events take place in Germany, the location of the first defendant's technical and business operations and that the plaintiff must bring its contractual claim in Germany.

Held by Gilligan J in granting the application. There was a prima facie demonstration of a wrongful activity in the use of the plaintiff's websites. The first named defendant was attempting to hide behind the activities of a service provider who accessed the plaintiff's website and delivered the information back to the first named defendant. It was apparent that the first named defendant was prepared to reveal the identity of the service provider website for its own purpose in the German proceedings but was not prepared to reveal the identity of that entity for the purpose of these proceedings and that situation had the potential to create an injustice.

Reporter: R.F.

1 1. The application before the court as brought by the plaintiff is for a direction that the first named defendant disclose the name, personal and/or business registered address and/or place of business, email address, telephone number, fax number and such other points of contact that this Honourable Court deems proper of the "third party provider" referred to throughout the affidavit of Mirko Richter, sworn on the 14 ^th June, 2010, which affidavit is sworn in the wider context of these proceedings.

2 2. The plaintiff is an airline that carries on the vast majority of its business through its websites www.ryanair. com and www.bookryanair. com by providing flight advertisement, search information, reservation and purchase services in respect of its own flights. The plaintiff also provides additional facilities whereby complementary and ancillary services such as accommodation reservation, car hire and insurance services may be accessed and booked by the plaintiff's customers.

3 3. The first defendant is a limited liability company organised and existing under the laws of Germany. It is domiciled in Germany and has its registered office in Leipzig. The first defendant does not have any place of business in Ireland. It carries on business as an online travel and Internet portal on its website www.ab-in- den-urlaub.de. The main part of the software used is the 'Internet Booking Engine', which processes data received from several third party service providers via interface edited for display on the website.

4 4. In essence, what has occurred is that the plaintiff's website is being accessed and information is being taken therefrom which is then used for the purpose of selling the plaintiff's flights to customers. The first defendant claims that its system enables consumers to identify the availability and price of flights and to perform a comparative analysis of those available flights. It is argued that the information made available to the consumer mirrors the information on an airline's website and includes where appropriate the fare rules and terms and conditions of the airline. If the consumer decides to make a booking, the consumer would provide all of the relevant details and information needed to purchase the flight and these details would be sent onwards to the airline's website or online booking system. The first defendant claims that at all times it is the consumer that is the party transacting the business with the airline's website or online booking system and that the first defendant is simply acting as agent and technology provider for such consumer. The first defendant receives a commission from the consumer in respect of the service it provides.

5 5. The second defendant is a limited liability company organised and operating under the laws of Germany. The second defendant owns, operates and controls the website www.fluege.de. The second defendant was joined as co-defendant in this action by order of Murphy J on the 12 ^th April, 2010.

6 6. Despite a request from the plaintiff, the first named defendant refuses to disclose for the purpose of these proceedings the identity of the entity who actually accesses the Ryanair sites.

7 7. However, the first named defendant is also engaged in litigation with the plaintiff in Germany and a jurisdictional issue has arisen. This issue was before the German Courts on the 26 ^th February, 2011, and judgment has been reserved with a further hearing scheduled for the 13 ^th April, 2011.

8 8. In the German proceedings Unister GmbH has set out in court documentation similar to a statement of claim that it has a contractual relationship with Ytsilon.netAG. They say that this provides an electronic interface for numerous travel agencies that enables flight data to be queried and the flights offered by Ryanair and numerous other low cost airlines to be booked. They say that after the customer has entered the flight data he wants on the first named defendant's site, they then send the data, inter alia, to Ytsilon.netAG and they identify flights that match the customer's desired data, and they then return these flights to the first named defendant and they are then offered to the customer on the first named defendant's site as part of the booking transaction.

9 9. The plaintiff claims that the defendants, as users of the plaintiff's websites, are bound by the Terms of Use governing...