Website owners often have to contend with the activities of third-party 'screen-scrapers', who use 'web harvesting' software to extract information from companies' websites. But website owners are now in a stronger position thanks to a recent decision by Mr Justice Michael Hanna in the High Court in the case of Ryanair Limited v Billigfluege.de GmbH (26 February 2010). However, it should be noted that the decision is currently under appeal to the Surpeme Court.

The Ryanair case concerned a claim by Ryanair that the service offered by the Billigfluege website breached the terms of use and trade mark, copyright and database rights of Ryanair's own website. Billigfluege operates a price comparison website that allows users of its website to compare prices of flights. In order to provide this service, Billigfluege takes information from Ryanair's website (without Ryanair's consent), an activity known as 'screen-scraping', and provides that information to its users for a fee.

Mr Justice Hanna's decision relates only to a preliminary issue as to whether the case should be heard in Ireland or Germany. It is not a full decision on the allegation of screen- scraping or the other issues that are before the court.

In any dispute, there is an initial issue that must always be determined: where should a defendant be sued? Billigfluege, a German-based company, argued that it was not appropriate that proceedings be brought in Ireland and that proceedings should instead be brought in Germany. Ryanair claimed that by Billigfluege entering the Ryanair website and extracting content from that website, it agreed to be bound by Ryanair's terms of use which contained a provision that Irish courts had exclusive jurisdiction over all disputes. Billigfluege denied that there was any contract in existence between it and Ryanair. The court had to decide the issue.

The court noted that it was a well-established general principle of law that parties to a contract cannot be bound by terms that they have not had the opportunity of reading prior to making the contract. But it added that this doesn't mean that a party will not be bound because it has not read the terms.

In the Ryanair case, the exclusive jurisdiction clause of Ireland was contained in the terms of use on Ryanair's website, highlighted by way of a hyperlink. The court found that the terms of use on Ryanair's website were fairly brought to the attention of the other party and it ruled in favour of Ryanair that the exclusive jurisdiction clause was binding on Billigfluege.

Billigfluege also argued that, regardless of the validity of the terms of use, it did not use Ryanair's website; rather, its customers did. The court held that Billigfluege is a commercial entity which engaged with the Ryanair website for the purposes of gleaning or scraping information from it for onward transmission to its own customers. The court said that to claim this is not 'use' of the Ryanair website was an exercise in semantics and an unconvincing argument. The court will now hear the full case and determine whether Billigfluege infringed Ryanair's intellectual property rights and/or breached its terms of use as a result of the alleged screen-scraping activity.

The main point to take from this decision is that if you are a website owner and you wish to prevent your content being misappropriated by third parties, whether you are an airline operator, a job recruitment website or operating any other form of online sales activity, it is imperative that your terms of use be comprehensive and up-to-date to ensure that you are appropriately protected. The terms of use must be fairly brought to the attention of the other party, meaning that the terms must be brought to the customer's attention in such a manner that they are incorporated into the contract.

We recommend that your terms of use be reviewed periodically and the manner in which they are displayed on your website be reviewed to ensure that your business is protected.

For further information please contact �ine Matthews.