A recent decision issued by the Irish High Court is welcome news for all website owners. In Ryanair Limited v Billigfluege1, the Irish High Court was asked to consider various preliminary issues regarding Billigfluege’s online activities. The case focussed on Ryanair’s website terms and conditions.
Billigfluege’s website provides a price comparison service which allows users of its website to compare prices for flights. Billigfluege gets the data for its website by obtaining information from various operators, including Ryanair. The process by which Billigfluege and indeed many other operators obtain this information is known as ‘screen scraping’ or ‘web scraping’.
From bots to screen scrapers
Screen scraping is closely related to web indexing, a process used by most search engines in which web content is indexed using a “bot” (an abbreviation of “web robot”, used to identify software applications which run automated tasks over the web). Badly behaved bots can be controlled in a number of ways, including blocking suspected bot IP addresses, blocking well behaved bots who declare that they are bots (such as ‘googlebot’), using tools to obtain user verification such as the Captcha project or forcing them to reveal their hand by planting a honey pot.
Similar prevention measures can be deployed against screen scrapers but, as so often happens in technology, screen scrapers represent an advance on the bot and enhanced protection measures are likely be required. What is screen scraping? Screen scrapers take unstructured information found in diverse locations on the web and structure this into a central database or spreadsheet. Screen scraping is widely practised on websites such as online price comparison websites, web research, web content mash up and weather data monitoring, to give just a few examples. It is the use of data gained from screen scraping with which this article is concerned and the extent to which this can be regulated by website terms and conditions.
Freedom of information
Websites are now a pivotal means of providing information about the good or services provided by businesses. That information is often provided on an open basis and is generally free of charge to Joe Public. However, issues often arise over commercial use of such information.
Many websites contain terms and conditions specifying the use to which information published on the website can be put. For example, most website terms and conditions will say that only non-commercial use is permitted and many significant commercial operators will require a licensing agreement to be entered into with screen scrapers wishing to make commercial use of website information.
Blocking the screen scrapers
What irked Ryanair was that Billigfluege had not obtained a licence to use Ryanair’s website information. In particular, Ryanair had not consented to Billigfluege using Ryanair’s website information and its website terms and conditions prohibited such use. Ryanair also argued that Billigfluege’s conduct breached its intellectual property (“IP”) rights, particularly its trade mark, copyright and database rights.
The High Court did not, in this decision, decide whether screen scraping was in breach of Ryanair’s terms and conditions and should be blocked. Rather, the preliminary issue before the court was the technical one of whether the Irish High Court had jurisdiction to hear the case or whether the dispute should be determined by the German courts where Billigfluege were based It was in this context that the Court had to look at Ryanair’s website terms and conditions. Specifically, the Court had to decide whether the provision in the terms and conditions stating that the Irish courts and only the Irish courts could deal with any dispute which arose (commonly called an ‘exclusive jurisdiction’ clause) was valid and binding.
The crux is the contract
For the exclusive jurisdiction clause to work, Ryanair had to satisfy the court that Billigfluege had become bound by its terms and conditions. Ryanair argued that, by entering its website and taking information from it, Billigfluege had agreed to be bound by Ryanair’s terms and conditions, which were clearly brought to the attention of all visitors to its website. Ryanair said that the information which it provided on its website (subject to its terms and conditions) represented the necessary consideration for the contract to be binding.
Billigfluege argued that it had not accepted the terms and conditions, relying on the absence of all the traditional features of a legally binding contract such as an offer and acceptance, a date when the contract was entered into, consideration and so on. Billigfluege also said that it did not make any use of Ryanair’s website, arguing that any use was by Billigfluege’s customers. On the basis that there was no binding contract, Billigfluege argued that it could not be sued in Ireland because of European rules which say that a defendant should always be sued in its country of domicile, unless the defendant has contractually agreed that the courts and laws of a particular country should apply to disputes under that contract.
Formation of contracts via the web
The High Court looked into the issue of how contracts are formed over the web in some detail. The court noted that there was little European authority on the issue and turned to the American courts for assistance.
In Capsi v Microsoft Corporation2, the Appellate Division of the Superior Court of New Jersey was asked to determine the validity of an exclusive jurisdiction clause contained in an online Microsoft agreement. Users were required to click on a button marked ‘I accept’ to register and obtain the product. The court held that ordinary contract law principles applied so that Microsoft’s offer to supply the product on the terms given was accepted by the user clicking on this button. The fact that the contract had been entered into online made no difference.
Quoting from the American case of Specht v Netscape3, the court noted that a “reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility”.
Timing and location of terms
The Court held that Ryanair’s terms and conditions were clearly visible to all visitors and users of their website at all times. Specifically, the exclusive jurisdiction clause was contained in the terms and conditions which were highlighted by way of a hyperlink. This hyperlink was clearly visible to all users at all times. The terms and conditions were not hidden in an awkward part of the site or in any way concealed or difficult to find.
The Court confirmed the general principle of contract law that parties to a contract cannot be bound by terms which they have not had the opportunity of reading prior to making the contract but held that this is not the same thing as saying that a party will not be bound because they have not read the terms. A party will only escape being bound if they can show that they weren’t given a reasonable opportunity to read the terms in question before entering into the contract.
The Court also found that the consideration which was needed to create a binding contract was provided in the form of the information which Ryanair published on its website. Finally, the Court rejected Billigfluege’s argument that it did not ‘use’ the website, noting that it was a commercial entity which interacted with Ryanair’s website for the purpose of gaining information and used this information for commercial advantage.
Click to a conclusion
The case is a useful reminder of the issues which arise when forming contracts over the web. The crucial point for website owners is the need to have strong, unambiguous terms and conditions and to ensure that these are brought to the attention of visitors and users before they commit to buying products or services and in a way which is clear and fair.
Website owners should also ensure that their websites are reviewed regularly to ensure that the content is up to date. In addition, regular reviews of the website terms and conditions are essential to ensure that your online operations are fully protected. Do this and you stand a good chance of stopping bots from behaving badly.