15 January 2015

Anti-screen scraping Ts and Cs can be effective, rules European Court

In an eagerly awaited judgment, the Court of Justice of the European Union (CJEU) has ruled that website terms and conditions prohibiting the wholesale extraction of data - aka screen-scraping - can be enforceable.

The decision relates to a dispute between low-cost airline Ryanair and PR Aviation, the operator of a price comparison website, which allows users to compare air fares and book flights on payment of a commission. More specifically, the dispute centred around the use by PR Aviation of flight and price data sourced from the Ryanair website.

Visitors to the Ryanair website have to accept the company's terms and conditions by clicking on a checkbox. At the relevant time, those conditions contained the following clauses:

"2. Exclusive distribution. This website and the Ryanair call centre are the exclusive distributors of Ryanair services. Ryanair.com is the only website authorised to sell Ryanair flights. Ryanair does not authorise other websites to sell its flights, whether on their own or as part of a package. … 
3. Permitted use. You are not permitted to use this website other than for the following, private, non-commercial purposes: (i) viewing this website; (ii) making bookings; (iii) reviewing/changing bookings; (iv) checking arrival/departure information; (v) performing online check-in; (vi) transferring to other websites through links provided on this website; and (vii) making use of other facilities that may be provided on the website. 
The use of automated systems or software to extract data from this website or www.bookryanair.com for commercial purposes, (‘screen scraping’) is prohibited unless the third party has directly concluded a written licence agreement with Ryanair in which permits it access to Ryanair’s price, flight and timetable information for the sole purpose of price comparison."

In the Dutch Courts, Ryanair claimed PR Aviation had breached these contractual prohibitions, as well as infringing copyright and database rights. At first instance Ryanair was partially successful to the extent the claim was based on Dutch copyright law, but that was set aside by the Dutch Court of Appeal. In doing so they also held that Ryanair's terms and conditions could not invalidate use of or access to the website which would otherwise be lawful. 

This is the interesting part of the decision, which was appealed to the Dutch Supreme Court and in turn referred to the CJEU.  

European database legislation (the 1996 Database Directive) provides that any contractual provisions that contradict a lawful user's right to access and make normal use of the contents of a database are "null and void". 

Ryanair argued that this restriction on the use of contractual terms and conditions only applied if the database was covered by the Directive, ie if it qualified for copyright or database right protection (which the Dutch Court had ruled the Ryanair website did not). And the CJEU agreed with Ryanair, leaving it free to argue that PR Aviation had infringed its website terms and conditions.

The issue of infringement is one that is going to have to go back to the Dutch Courts for them to finally determine, so while Ryanair may have won the battle it has not yet won the war. However, what is clear from this ruling is that copyright or database rights in an online database can be hard to substantiate. Website operators should not ignore the importance of well drafted terms and conditions to protect their intellectual property, which can be a very effective - and enforceable - means of defence.


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