A High Court order requiring an online travel agent to disclose the identity of the third party which it engaged to “scrape” information from Ryanair’s website has been overturned by the Supreme Court.
In 2009, Ryanair issued proceedings against Unister, an online travel agent based in Germany, which runs a price comparison website where customers can book flights, holidays and hotels. Unister engaged a third party to take information from the Ryanair website (a practice known as “screen-scraping”), which Unister then used for the purpose of selling flights for a commission. While Unister contends that its business is entirely legitimate, Ryanair claims that it violates the terms of use of its website.
In the course of the proceedings, a dispute arose as to the jurisdiction of the Irish courts to deal with the case. Ryanair submitted that the Irish courts had jurisdiction as the terms of use of its website require that all persons accessing its website submit to the sole and exclusive jurisdiction of the Irish courts. Unister, however, claimed that it was not bound by such terms of use as it used a third party to access the Ryanair website on its behalf. When Unister refused to disclose the identity of the third party, Ryanair asked the High Court to order it to do so. The Court made the necessary order in March 2011, notwithstanding that Unister’s challenge to the jurisdiction of the Irish courts was (and still is) still pending.
Unister appealed against the disclosure order and the order was postponed pending the appeal. In the meantime, Ryanair discovered the identity of the third party, Ypsilon.net AG, and successfully applied to the High Court to have it joined as a co-defendant to the proceedings. Unister also appealed against this order.
The Supreme Court held that the High Court should not have ordered Unister to disclose the third party’s identity at a time when its challenge to the jurisdiction of the Irish courts had not been determined as such orders might interfere with the process before the court is ultimately found to have jurisdiction. A court can, however, make orders which would assist it in determining the jurisdiction issue or provisional orders to safeguard the rights of the parties until the trial. The Court found that as the purpose of the disclosure order sought by Ryanair in this instance was only marginally connected to the jurisdiction question, it should not have been granted.
The Court, however, denied Unister’s appeal against the decision to join Ypsilon to the proceedings as the order had no effect on the jurisdictional challenge.
In another screen-scraping case, the Irish High Court held that it has jurisdiction to determine a screen-scraping dispute between Ryanair and a UK-based online travel agency. The Court found that the terms of use of Ryanair’s website, including the choice of jurisdiction clause, were binding on the UK company.
Contributed by Mary Drennan.
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