Ryanair Designated Activity Company v Skyscanner Ltd & ORS (Approved)

Factual and Procedural Background

This opinion concerns an interlocutory injunction application brought by the Plaintiff, a major airline, against the Defendant, a meta-search travel website operator. The Plaintiff alleges that the Defendant unlawfully facilitates the sale of the Plaintiff’s flights by certain online travel agents (“OTAs”) on its platform, contrary to the Plaintiff’s website Terms of Use and a licence agreement between the parties. The Plaintiff seeks an interlocutory injunction restraining the Defendant from allowing OTAs to sell its flights without providing the Plaintiff with the passengers’ personal email addresses, instead of OTA-generated email addresses. The substantive hearing for the main action has yet to be fixed. The interlocutory application was heard over six days.

Legal Issues Presented

1. Whether the Plaintiff is entitled to an interlocutory injunction compelling the Defendant to require OTAs to provide the Plaintiff with passengers’ personal email addresses when booking flights via the Defendant’s website.
2. Whether the injunction sought is prohibitive or mandatory in substance, and the applicable standard for granting such an injunction.
3. Whether the Plaintiff has a strong case likely to succeed at trial on claims including breach of contract, breach of Terms of Use, unlawful screen scraping, and facilitation of unlawful sales.
4. The adequacy of damages as a remedy and the balance of justice in granting or refusing the interlocutory injunction.
5. The extent of the Defendant’s control over OTAs and the practical implications of enforcing the injunction.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant facilitates the unlawful sale of the Plaintiff’s flights by OTAs in breach of the Plaintiff’s website Terms of Use and licence agreement.
• OTAs provide the Plaintiff with OTA-created email addresses instead of passengers’ personal email addresses, causing inconvenience and frustration to passengers who cannot easily verify bookings or receive timely communications.
• Inconvenience includes delays in passenger assistance, potential missed flights, and regulatory compliance issues such as contact tracing during the Covid-19 pandemic.
• The Plaintiff seeks to protect passengers and ensure direct communication by obtaining personal email addresses.
• The Plaintiff claims a strong case on breach of contract and Terms of Use, relying on precedent and the express terms of the licence and website agreement.
• The Plaintiff contends damages would be an inadequate remedy due to potential irreparable harm from lost ancillary revenue.
• The injunction sought is framed as prohibitive and aims to preserve the status quo prior to November 11, 2019, when the Defendant allegedly changed its business model.
• The Plaintiff contends the Defendant benefits financially from OTA commissions and should be able to control OTA practices on its platform.

Defendant's Arguments

• The licence agreement with the Plaintiff was terminated on November 11, 2019, and since then the Defendant’s access to flight information is not via the licensed API.
• The Defendant denies engaging in unlawful screen scraping and characterises the term as a pejorative for lawful data collection from publicly available sources.
• The Defendant does not sell flights itself but facilitates OTA sales and does not provide OTA email addresses to the Plaintiff; OTAs independently provide those addresses.
• The injunction sought is in substance mandatory, requiring the Defendant to monitor and control independent third parties’ business models and to potentially exclude OTAs from the platform, which would cause severe commercial harm.
• The Defendant rejects the Plaintiff’s offer to monitor OTA compliance as an unprecedented interference with its business and raising competition law concerns.
• Other airlines do not require personal email addresses for passenger identification, and the Plaintiff could alleviate passenger inconvenience by using other unique identifiers.
• The Defendant highlights that only four OTAs out of approximately 300 use OTA email addresses, and these OTAs operate the same business model across multiple platforms.
• The Defendant notes that granting the injunction would place it at a competitive disadvantage vis-à-vis other meta-search sites not subject to such restrictions.
• The Defendant challenges the credibility of the Plaintiff’s evidence, noting much alleged prejudice predates the relevant date and may not involve bookings via the Defendant’s platform.
• The Defendant emphasizes the operational justification for OTA email addresses, especially in complex itineraries where OTAs manage customer service.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first identified that the injunction sought, though framed as prohibitive, is in substance mandatory because it requires the Defendant to take positive and ongoing actions, including monitoring third-party OTAs and potentially altering its business model by excluding OTAs that do not comply. This elevates the standard of proof to a strong case likely to succeed at trial.

The Court found that while the Plaintiff has an arguable claim, particularly on breach of the website Terms of Use, it has not demonstrated a strong case to justify mandatory interlocutory relief. Other causes of action raised by the Plaintiff were deemed arguable but not strong cases at this stage.

The Court considered the balance of justice, noting the Plaintiff's emphasis on passenger inconvenience caused by the use of OTA email addresses rather than personal ones. However, the Court observed that the Plaintiff itself could mitigate this inconvenience by using other unique identifiers to verify passengers, as other airlines do. The Plaintiff’s reliance on passenger inconvenience was thus weakened.

The Court also noted that the alleged prejudice largely relates to incidents predating the Defendant’s alleged unlawful conduct and that the majority of OTAs provide personal email addresses. The Defendant’s commercial interests and competitive position would be severely harmed by the injunction, which would not affect OTAs’ similar practices on other platforms.

The Court highlighted that the Plaintiff’s complaint is primarily against OTAs, who are the actual providers of OTA email addresses, and that the Defendant acts as a secondary target or proxy. The Plaintiff has other direct remedies against OTAs but has chosen to sue the Defendant instead.

The Court was concerned about the practical difficulties and ongoing supervision required for the injunction, which involves monitoring hundreds of independent third parties over whom the Defendant has no control, exposing the Defendant and its officers to contempt risks.

Further, the Court criticized the Plaintiff’s conduct in issuing a misleading press release following an ex parte injunction obtained in Germany, which called for a boycott of the Defendant, potentially amounting to anti-competitive conduct.

Finally, the Court found that damages would be an adequate remedy for both parties, given the commercial nature of the dispute and the ability to quantify losses.

Holding and Implications

The Court REFUSED the Plaintiff’s application for an interlocutory injunction.

The injunction sought was held to be mandatory in substance, requiring a strong case that the Plaintiff did not establish at this interlocutory stage. Even if the injunction were considered prohibitive, the balance of justice did not favour its grant due to factors including the Plaintiff’s ability to alleviate inconvenience, the Defendant’s lack of direct control over OTAs, the limited number of OTAs involved, and the commercial and practical difficulties of enforcement.

The decision means the Defendant may continue to facilitate OTA sales of the Plaintiff’s flights without requiring OTAs to provide passengers’ personal email addresses. The Plaintiff retains the ability to pursue the substantive claims at trial and to seek remedies directly against OTAs. No new legal precedent was established by this interlocutory ruling.