27 February 2015 by

Go compare elsewhere! The battle of low cost airlines

Ryanair has just won a legal battle with Dutch low-cost comparison website, FlyLowCost.com (operated by PR Aviation BV), in the Court of Justice of the European Union (the “CJEU”). Ryanair took the action to try and prevent comparison websites from using automated technology to ‘screen-scrape’ flight information from its site and present this data to customers on alternative price comparison sites.

If you have used the Ryanair website, you may recall the checkbox asking every user of the site to agree to Ryanair’s terms & conditions of use. Those terms and conditions specifically exclude ‘screen-scraping’ practices.

Ryanair maintains that when customers book flights through comparison sites rather than the Ryanair website, they miss out on important flight updates, cancellation information and safety information. The more cynical among us may also note that those customers would further miss out on the convenience of booking insurance, hotels, rental cars, transfers, and extra baggage!

PR Aviation BV argued in opposition that the flight information fell within the definition of a ‘database’ in the Database Directive (96/9/EC), which entitles them to access Ryanair’s website and utilise the contents of their database without being in breach of Ryanair’s terms and conditions. The Dutch Courts had already decided that Ryanair did not attract copyright or database right protection under the Directive.

PR Aviation further argued that, as the Directive still applied, they were permitted as a ‘lawful user’ of the site to extract certain information and that Ryanair could not contract out of its right to do so. The Dutch Court referred the case to the CJEU to decide whether, if the information accessed and used by PR Aviation falls within the broad definition of a database, but does not qualify for copyright or database protection under the Directive (which it was found not to by the Dutch Courts), could Ryanair contract out of screen-scraping with users of its site in light of Article 15? The CJEU decided that Ryanair could contract out.

The case has left the peculiar situation whereby Ryanair now has greater control over the extraction of its information by virtue of not qualifying for intellectual property protection under the Directive; as it is free to contract out of allowing the use of that information.

The ruling of the Court of Justice of the European Union means that many low-cost comparison sites may have to rethink their business models; perhaps by obtaining licences for the use of the information from airlines.

Businesses with an online presence should consider including a checkbox asking users to agree to the terms and conditions of the site and specifically prohibit ‘screen-scraping’ to protect information, where appropriate. If those terms are subsequently breached, businesses may have a claim in contract.

Bolt Burdon have extensive expertise with copyright and other intellectual property disputes and if you have any queries that you would like to discuss, please contact Marc Thurlow on 020 7288 4768 or marcthurlow@boltburdon.co.uk or Nicola McQuillan on 020 7288 4749 or nicolamcquillan@boltburdon.co.uk

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