Website Terms of Use

Author:Ms Áine Matthews
Profession:LK Shields
 
FREE EXCERPT

If you own a website and you want to prevent your content from being misappropriated by third parties, then you'll be cheering for Ryanair as Michael O'Leary takes on a German price comparison website. Áine Matthews rings the bell for round one.

Website owners often have to contend with the activities of third-party 'screen-scrapers', who use 'web harvesting' software to extract information from companies' websites. But website owners are now in a stronger position thanks to a recent decision by Mr Justice Michael Hanna in the High Court in the case of Ryanair Limited v Billigfluege.de GmbH (26 February 2010). However, it should be noted that the decision is currently under appeal to the Surpeme Court.

The Ryanair case concerned a claim by Ryanair that the service offered by the Billigfluege website breached the terms of use and trade mark, copyright and database rights of Ryanair's own website. Billigfluege operates a price comparison website that allows users of its website to compare prices of flights. In order to provide this service, Billigfluege takes information from Ryanair's website (without Ryanair's consent), an activity known as 'screen-scraping', and provides that information to its users for a fee.

Mr Justice Hanna's decision relates only to a preliminary issue as to whether the case should be heard in Ireland or Germany. It is not a full decision on the allegation of screen- scraping or the other issues that are before the court.

Jurisdiction

In any dispute, there is an initial issue that must always be determined: where should a defendant be sued? Billigfluege, a German-based company, argued that it was not appropriate that proceedings be brought in Ireland and that proceedings should instead be brought in Germany. Ryanair claimed that by Billigfluege entering the Ryanair website and extracting content from that website, it agreed to be bound by Ryanair's terms of use which contained a provision that Irish courts had exclusive jurisdiction over all disputes. Billigfluege denied that there was any contract in existence between it and Ryanair. The court had to decide the issue.

The court noted that it was a well-established general principle of law that parties to a contract cannot be bound by terms that they have not had the opportunity of reading prior to making the contract. But it added that this doesn't mean that a party will not be bound because it has not read the terms.

In the Ryanair case, the exclusive jurisdiction clause of Ireland...

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