Ryanair claims that a flight aggregation site’s practice of “screen-scraping” infringes their trade marks and database rights and that the use of RYANAIR amounts to “passing off”. Gemma Neylon, trainee solicitor at Mason Hayes+Curran in Dublin scans the legal issues and commercial implications.
Topic: Intellectual property
Who: Ryanair Limited v. Bravofly Limited
When: July 2008
Where: Ireland
Law stated as at: 22 July 2008
What happened:
Proceedings were issued on 14 March 2008 by Ryanair Limited ("Ryanair") against Bravofly Limited ("Bravofly") of Dublin. The case was admitted to the Irish High (Commercial) Court on 7 July 2008 (Proceedings Record Number 2008/2204 P).
Bravofly's travel websites offer users the ability to search flight prices and timetables on routes operated by a number of airlines, allowing a comparison of prices between airlines on various dates. It generates income by charging an administrative fee on top of the price charged by the relevant airline.
Ryanair claims that the manner in which Bravofly takes information for its website from the Ryanair site is against Ryanair's published terms and conditions of use. These prohibit the provision of details of Ryanair flights to others on a commercial basis.
Ryanair claims also that the practice of "screen-scraping", by which websites collect information from an airline's booking infrastructure to offer flights to customers without using the airline's website directly, breaches provisions of Ireland's Trademarks Act and the Copyright and Related Rights Act and further, that the use of the RYANAIR name, in presenting information on Ryanair's flight services, amounts to "passing off".
Injunction sought
Ryanair stated in the proceedings that it wrote to Bravofly requesting that the screen-scraping activities would cease, but no such undertakings were received. It is now seeking an injunction to restrain the alleged activities, damages, and/or an account of profits for wrongful interference with Ryanair's economic interests, as, it claims, the activities of Bravofly are diverting potential business from Ryanair. Customers who reserve Ryanair flights on Bravofly's websites miss the chance to read the ads and choose the offers on Ryanair's site.
Why this matters:
This will be the first case in which the Irish courts will consider the legality of screen-scraping. It would seem that Ryanair is primarily relying on the restrictions imposed by its website terms of use. However the courts may also consider a possible infringement of database rights, and the legality of hypertext links.
Relevant legislation: Database Directive 1996
Directive 96/9/EC on the legal protection of databases (the "Directive"), was implemented into Irish law by the Copyright and Related Rights Act 2000 (the "Act"). The Directive aims to ensure that the owner of a qualifying database obtains a return upon the substantial investment made in its arrangement.
A website constitutes a "database", defined in the Directive as:
"a collection of independent … data … arranged in a systematic or methodical way and individually accessible by any means".
In order to qualify for protection, substantial investment must have been made in the obtaining, verifying or presenting of the database.
The European Court of Justice ("ECJ") in British Horseracing Board v William Hill ([2004] ECR I-10415) indicated that a database right is infringed through unauthorized actions for the purposes of reconstituting, through cumulative acts of extraction, the whole or a substantial part of the contents of a database protected by the sui generis database right or, through the making available to the public, by the cumulative effect of acts of reutilization, the whole or a substantial part of the contents of such a database which seriously prejudice the investment made by the maker of the database.
However, the outcome of British Horseracing Board left the extent of the database right uncertain. The ECJ held that William Hill's use of horseracing data did not infringe the British Horseracing Board's database rights since the listings for horse races did not represent a "substantial investment". The court held that the real investment was in the actual organisation of the horse races rather than in the preparation of the database of listings.
Therefore, a successful claim by Ryanair to a database right under the Directive, would probably require that the "substantial investment" is in the database itself. It is not sufficient that the investment be primarily in the business to which the database relates. As a case involving the database right has yet to proceed before the Irish courts, the courts here will take guidance from the interpretation given to the Directive by the ECJ and will assess the extent of investment in the actual database by Ryanair.
If a database right is found by the courts to subsist in the Ryanair database, the screen-scanning by Bravofly, without the license of Ryanair, could amount to extraction (Section 320(1) of the Act) and re-utilisation (Section 320(1) of the Act) and could therefore constitute infringement of the database right (Section 324 of the Act) if such extraction/re-utilisation related to "a substantial part" (Section 324(1) of the Act) of the contents of the database.
Ryanair may seek an account of profits made by Bravofly through the infringing acts which could lead to a substantial payment from Bravofly to Ryanair.
The ECJ decision in British Horseracing Board is regarded by some as unsatisfactory, and there is widespread concern that the database right is not currently working as intended (e.g. DG Internal Market and Services Working Paper, "First evaluation of Directive 96/9/EC on the legal protection of databases", 12 December 2005). The legal principles regarding the database right are unclear and in a state of flux. It is to be hoped that the Irish courts will take this chance to shed some light on the interpretation and application of the database right.
Relevant Legislation: Criminal Damage Act 1991
The Criminal Damage Act 1991 criminalises unauthorized access to data (Section 5 Criminal Damage Act 1991). It is possible that screen-scraping activities constitute an offence under this Act. However, the Electronic Commerce Regulations 2003 (S. I. No 68 of 2003), which implement the Electronic Commerce Directive 2000 (Directive 2000/31/EC), provide defences to "information society service" providers – the mere conduit defence (regulation 16) the caching defence (regulation 17) and the hosting defence (regulation 18). These defences offer protection to such providers against civil and criminal liability (although an injunction may nonetheless be granted against such providers).
Hypertext Links – illegal?
Ryanair claims that the establishment and maintenance of hypertext links from its websites to the Ryanair website is "without Ryanair's authorisation".
In one of the earliest Internet legal judgements, the 1996 Scottish case of Shetland Times v Wills (Shetland Times v Wills [1997] F.S.R. 604), Lord Hamilton in the Court of Sessions held that "deep linking" into the website, past the front page, was unacceptable. However, this case may be of limited authority as the decision was only an interim order without full argument of possible defences, and was decided at a time when the internet was younger and its search functionality much less developed. It is arguable that URLs are not protected by copyright as they neither meet the required thresholds to be treated as a literary work, nor do they possess any original content.
Hypertext is essential to the working of the internet. The internet's architecture is premised around the linking of webpages. The argument that the authorisation of a website is necessary before hyperlinking may be carried out could open floodgates where every website which has been hyperlinked may sue the website which has put the hyperlink in place. This, and the fact that such a finding could undermine the very viability of the internet, could sway the court from accepting Ryanair's claim. It is often argued that when one publishes material on the internet, one impliedly licenses at the very least hyperlinking and, more widely, the caching and indexing of material by search engines ("Search Engines, data aggregators and UK copyright law: a proposal", Allgrove and Ganley, 2007 E.I.P.R. 227).
Screen-scraping
A successful outcome in this case for Ryanair could potentially make all search engines by their very nature illegal. The sites of data aggregators, such as Bravofly and Expedia, simply offer users access to information collated by a specialized form of search engine. The difference between data aggregators and search engines such as Google, Yahoo, et al, is that the former confine their service (of providing information collated by either the service provider or by third parties) to one type of site such as those of airlines, while the latter potentially collate information from the entire internet.
When Google scrapes the website of any given company, it displays part of the content of the company's site on its search engine results page ("SERP"), along with parts of the websites of the company's competitors. Many companies do not have a problem with this practice as the majority of traffic is often derived from SERPs, which in turn drives the revenue of the company.
Many websites in the airline and insurance businesses welcome screen-scraping by aggregators as a way of generating new business. However, spokespersons for Ryanair have been quoted as stating that the reason for their objection to screen-scraping is that their efforts to be "Europe's cheapest low-fares airline" are in vain when companies such as Bravofly top up their basic fare with an administrative fee, without giving the customer any added value (OUT-LAW.com, July 2008, part of international law firm Pinsent Masons). Many customers do, however, regard the services provided by websites such as Bravofly as added value in decreasing the time spent searching the websites of different airlines.
In March 2007, Ryanair complained to Lastminute.com about its screen-scraping practices in the reselling of Ryanair flights (M-travel.com, "Ryanair blocks lastminute.com" available at www.m-travel.com/news/2007/03/ryanair_blocks_.html). Ryanair recently secured an injunction in the Hamburg Regional Court prohibiting VTours GmbH from screen-scraping its website. The airline stated that it will "continue to campaign across Europe for legislation to prohibit unlawful screen-scraping and ensuing breach of copyright laws, which will prevent these profiteering middlemen from engaging in the mis-selling of Ryanair's flights and information" (Quote from Ryanair's Michael Cawley, in OUT-LAW.com July 2008).
In a similar vein, EasyJet previously sent warnings to a number of websites, including Expedia.co.uk. in June 2008, instructing them to cease alleged screen-scraping (www.theregister.co.uk "EasyJet warns Expedia: "Hands off our flights", 25 June 2008).
Screen-scraping, while currently inhabiting a grey legal area, is at the heart of a multi-billion euro new industry which is changing the face of online business. In the US, the biggest names in aggregation are Confused.com and Moneysupermarket.com who compare deals for consumers by comparing the prices of multiple suppliers. Such companies are the post-Internet equivalent of brokers, on a larger scale. They quickly scan ("scrape") all internet published deals so that the customer does not have to, increasing the range of the customer's search enormously.
Gemma Neylon
Trainee Solicitor
Mason Hayes+Curran, Dublin
gneylon@mhc.ie
