In a dispute concerning so-called "screen scraping" between Ryanair and a German price comparison site—Ryanair Ltd v Billigfluege.de GmbH [2010] IEHC 47—the Irish High Court was satisfied that the terms of use of a website formed an agreement between the operator and user of a website for the purposes of Article 23 of the Brussels Regulation. Accordingly, a jurisdiction clause in those terms governed any dispute arising between the parties. Screen scraping is the gathering of flight information offered by a carrier through their website for re-posting on another website.

BACKGROUND

Billigfluege had engaged in screen scraping flights offered by Ryanair through Ryanair's website. Ryanair alleged this breached the terms of use of the website. Pursuant to an exclusive jurisdiction clause in the terms of use, Ryanair brought a claim in the Irish courts. Billigfluege, a company domiciled in Germany, sought to challenge the jurisdiction of the Irish courts.

Billigfluege relied on the domicile rule in Article 2 of the Brussels Regulation (44/2007), arguing the claims should have been brought in Germany.

Ryanair relied on Article 23 of the Brussels Regulation, which allows for parties to agree that disputes shall be subject to the courts of a nominated Member State.

JUDGMENT

Hanna J placed particular emphasis on the European Court of Justice (ECJ) decision in Benincasa v Dentalkit [1997] ECR I- 3767. The ECJ found that a validly concluded jurisdiction clause remains valid despite either party seeking a declarationtherefore must be satisfied that the terms of use created a contract between the parties.

Hanna J found that the terms of use were accessible by way of a hyperlink that was visible on the Ryanair website at all times. This, in the Judge's view, was "fairly brought to the attention of the other party" and with sufficient notice. Further, the provision of information constituted a sufficient act of consideration to make the contract legally binding. Hanna J therefore found that a legally binding contract existed between the parties.

Since the terms of use had contractual effect, it followed that the exclusive jurisdiction clause contained therein was also binding. Hanna J did not go so far as to declare the remainder of the terms of use valid.

COMMENT

This judgment is encouraging for website owners, as it suggests that well-signposted terms and conditions can be used to circumvent the potentially prohibitive (and expensive) implications of the domicile rule in the Brussels Regulation. Given that there are only limited High Court authorities to date on this point, any decision of an appellate court will necessarily offer a more authoritative statement of the law in this area.