Two judgments from Nº1 Commercial Court of Madrid and Nº4 of Barcelona, upheld both lawsuits against Ryanair for defamation and unfair competition arising from Ryanair threatening two specific online travel agencies (Atrápalo and Rumbo) to cancel all plane tickets purchased through them.
In fact, the case dated back to the summer of 2008, when Ryanair launched a campaign against these agencies when it accused them of being “fraudsters/crooks”, “bloodsuckers”, and of “charging hidden fees”. Ryanair likewise proceeded to announce that it would proceed to modify its General Terms and Conditions of Use, and announced the cancellation of all tickets purchased through these agencies: “Any flights purchased through a website that is not Ryanairs’ own website will be cancelled without notice or reimbursement.”
In response to the campaign instigated by the airline, two of the leading online travel agencies in Spain, Atrápalo and Rumbo, brought proceedings against Ryanair for defamation and unfair competition, pursuant to Articles 5 and 9 of the Spanish Unfair Competition Act No. 3/1991. It should be clarified that even though they were two current judgments, the amendments introduced by the Reform of the Spanish Unfair Competition Act approved by the Spanish Parliament on 30 December 2009, (Act No. 29/2209), were not applied as the events date back to 2008.
With regard to Article 5 of the Unfair Competition Act and despite the principle of a free enterprise established in Article 38 of the Spanish Constitution being recognised, this article bans the cancellation of plane tickets correctly purchased by users through agencies or brokers. Notwithstanding the above, Nº4 Commercial Court of Barcelona stated that it was the duty of the agencies to dissipate any fears regarding the validity of these tickets and therefore proceed only to partially rule for the claim.
Pursuant to Article 9 of the Unfair Competition Act, regarding inaccurate and deflamatory statements, the Judgment found that these statements are not covered by the “exceptio veritatis” concept or by the principle of self-governance. Even though the airline argued that the endeavours of the agencies had gone against its own interests, the Legal Spanish System contains effective defence mechanisms in the Unfair Competition Act.
Notwithstanding the above, Nº4 Commercial Court of Barcelona found partially for the claim and recognised that an average consumer would know how to interpret statements and how to value the services offered by these brokers. According to the Court, the agencies should be ready to be at the receiving end of these types of the statements, as the higher prices directly undermine Ryanair’s purpose which is to offer low cost flights.
Analyzing the nuances in the findings of both rulings is likewise of interest. According to the reform of the Unfair Competition Act by act No. 29/2009, Article 32.2 implies that the publication of the ruling in national newspapers is a self-perpetuating remedy. However and as we have argued, these provisions are not ratione temporis that can be applied to the case in question as the facts occurred prior to the reform. Permission for publication is thus required. Therefore, as it had been expressly sought in the preliminary hearing, the ruling issued by Nº4 Commercial Court of Barcelona was published in the national editions of the El País, ABC and El Periódico de Cataluña newspapers.
However, as the claimant had omitted said “petitum” when petitioning Nº1 Commercial Court of Madrid, the Court did not find for the self-perpetuating remedy as would currently be the case given the aforementioned reform.