Who: Ryanair, eDreams, Google
Where: United Kingdom
When: 6 October 2015
Law stated at: 23 November 2015
What happened:
Budget airline Ryanair has been engaged in something of a crusade against screenscraper sites.
Earlier in 2015 the airline scored two significant victories in the European courts.
In the first case the European Court of Justice confirmed that the airline could in principle use terms and conditions on its website to prevent third parties from screen-scraping publically available data (Ryanair Ltd vs PR Aviation BV, C-30/14).
In the second case, before the Hamburg court, online travel agency eDreams was ordered to cease using the ryanair.eDreams.de subdomain as well as to stop using the same domain in its Google advertising.
In October 2015, the budget airline continued its campaign by publishing a press release on its website which again took aim at eDreams. Ryanair claimed that eDreams was using Google advertisements to mislead travellers into booking through websites which were masquerading as Ryanair’s own. The release “called on Google” to enforce greater transparency in advertising.
Ryanair was objecting to eDreams purchasing advertising using Google’s advertising platform which then appeared above Ryanair’s own brand when a customer searched for the word “Ryanair.” The URL that featured in the eDreams search result was: “www.ryanair.edreams.com/Flights” and the subheader was “Fly with Ryanair and save money”.
Ryanair claimed in its release that potential customers could be misled into believing that this was an official Ryanair site and then booking with eDreams, which according to Ryanair charges customers more, sometimes fails to pass vital information on, and can cause issues with online check-in.
eDreams responds.
It appears that Ryanair and eDreams have a history of disagreements over eDreams reselling Ryanair’s services, and this is not the first time that the retailers have come to (verbal) blows. eDreams was quoted in Business Insider as having responded to Ryanair’s press release as follows:
“eDreams notes Ryanair’s latest attack on the fast-growing online travel agency (‘OTA’) sector. As an OTA, eDreams is perfectly entitled to sell Ryanair tickets, and the tickets of other airlines providing customers with much-needed choice and variety to the flight distribution market. Our sites deliver consumers with the ability to find the best prices and our services are supported by our proven, high customer satisfaction. It is also perfectly lawful for an OTA to use the AdWords service of Google in order to advertise flight booking services provided to its customers. Ryanair has been trying, without success, to prevent OTAs selling its tickets for the last ten years, and they are now invoking new, ill-founded grievances.”
Why this matters
Risks for resellers. As long as search continues to be the main channel for consumers to locate brands on the internet, competition in the paid-for advertising space will undoubtedly be a hotly contested area, with risks of challenges to the ASA and threats of claims for passing-off and/or trade mark or copyright infringement.
In particular, businesses which resell other companies’ products or services (such as online travel agencies) will be well aware that the brand being resold is likely to prefer customers coming to them directly. Competing hard for clicks is therefore more likely to be controversial, and accordingly potentially more at risk of challenge by the underlying brand owner.
Copycat cases. A further risk for such resellers – depending on how the reseller presents and advertises itself – may be being branded a “copycat website”. One focus of the ASA in recent years has been on “copycat” websites reselling public services to customers (for example applications for EHIC cards, driving licences, passports and trade mark renewals).
The issue here is that such services are often more expensive through the resellers than the official channels (for example, EHIC cards are free from the NHS, but some resellers have been found to charge up to £35 administration fees). The ASA has noted that this practice may not be inherently illegal, but that it is crucial for such sites to make absolutely clear that they are not the official service.
One example of the ASA’s approach was ASA Ruling on Europe EHIC Services Ltd, 17 September 2014, where a site taking payment to provide customers with EHIC cards was found to be misleading as it had taken insufficient steps to make clear that it was not the official site).
On the issue of whether the practice is illegal, see the Court of Appeal judgment in the case of Secretary of State for Business Innovation and Skills vs PLT Anti-Marketing Ltd as reported on ocmarketinglaw.com in March 2015.
It is worth noting that the ASA’s adjudications on copycat cases to date have predominantly involved copycat websites charging consumers for public services (or, in one case, provision of lottery results), however all advertisers will, as ever, need to carefully walk the line between edgy, effective advertising strategies and those that stray into the prohibited territory of misleading advertising under Rule 3.1 and 3.3 of the CAP Code.
