Mr. Justice Paul Gilligan
The application before the court as brought by the plaintiff is for a
direction that the first named defendant disclose the name, personal and/
or business registered address and/or place of business, email address,
telephone number, fax number and such other points of contact that this
Honourable Court deems proper of the “third party provider” referred to
throughout the affidavit of Mirko Richter, sworn on the 14th June, 2010,
which affidavit is sworn in the wider context of these proceedings.
The plaintiff is an airline that carries on the vast majority of its business
through its websites www.ryanair.com and www.bookryanair.com by
providing flight advertisement, search information, reservation and
purchase services in respect of its own flights. The plaintiff also provides
additional facilities whereby complementary and ancillary services such
as accommodation reservation, car hire and insurance services may be
accessed and booked by the plaintiff’s customers.
The first defendant is a limited liability company organised and existing
under the laws of Germany. It is domiciled in Germany and has its
registered office in Leipzig. The first defendant does not have any place of
business in Ireland. It carries on business as an online travel and Internet
portal on its website www.ab-in-den-urlaub.de. The main part of the
software used is the ‘Internet Booking Engine’, which processes data
received from several third party service providers via interface edited for
display on the website.
In essence, what has occurred is that the plaintiff’s website is being
accessed and information is being taken therefrom which is then used
for the purpose of selling the plaintiff’s flights to customers. The first
defendant claims that its system enables consumers to identify the
availability and price of flights and to perform a comparative analysis of
those available flights. It is argued that the information made available
to the consumer mirrors the information on an airline’s website and
includes where appropriate the fare rules and terms and conditions of the
airline. If the consumer decides to make a booking, the consumer would
provide all of the relevant details and information needed to purchase the
flight and these details would be sent onwards to the airline’s website or
online booking system. The first defendant claims that at all times it is
the consumer that is the party transacting the business with the airline’s
website or online booking system and that the first defendant is simply
acting as agent and technology provider for such consumer. The first
defendant receives a commission from the consumer in respect of the
service it provides.
The second defendant is a limited liability company organised and
operating under the laws of Germany. The second defendant owns,
operates and controls the website www.fluege.de. The second defendant
was joined as co-defendant in this action by order of Murphy J on the 12th
April, 2010.
Despite a request from the plaintiff, the first named defendant refuses
to disclose for the purpose of these proceedings the identity of the entity
who actually accesses the Ryanair sites.
However, the first named defendant is also engaged in litigation with the
plaintiff in Germany and a jurisdictional issue has arisen. This issue was
before the German Courts on the 26th February, 2011, and judgment has
been reserved with a further hearing scheduled for the 13th April, 2011.
In the German proceedings Unister GmbH has set out in court
documentation similar to a statement of claim that it has a contractual
relationship with Ytsilon.net AG. They say that this provides an electronic
interface for numerous travel agencies that enables flight data to be
queried and the flights offered by Ryanair and numerous other low cost
airlines to be booked. They say that after the customer has entered the
flight data he wants on the first named defendant’s site, they then send
the data, inter alia, to Ytsilon.net AG and they identify flights that match
the customer’s desired data, and they then return these flights to the first
named defendant and they are then offered to the customer on the first
named defendant’s site as part of the booking transaction.
The plaintiff claims that the defendants, as users of the plaintiff’s
websites, are bound by the Terms of Use governing those websites, which
prohibit any party other than the plaintiff from selling the plaintiff’s flights
and/or services. The plaintiff claims that this constitutes a breach of
contract. The plaintiff further claims that the defendants have breached
the rights, in particular database and copyright right, of the plaintiff
under the Copyright and Related Acts, by virtue of the manner in which
the defendants’ websites interact with those of the plaintiff. The plaintiff
further claims that the defendants have breached the trademark rights of
the plaintiff through the unauthorised use of registered trademarks of the
plaintiff on their websites. The plaintiff also submits that the defendants
are passing off its search and booking services available through their
websites as being connected with the plaintiff, thereby causing damage
to the reputation and goodwill of the plaintiff, particularly having regard
to the fact that the first defendant imposes an additional unauthorised
charge on the consumer.
The plaintiff submits that the case being put forward by the first
defendant is that it is not the entity that accesses and uses the plaintiff’s
websites, but that a third party does so and the plaintiff contends that
the first defendant cannot simply make such a bald averment without
providing details of the said third party.
The plaintiff in these proceedings further submits that the Jurisdictional
issue is clear cut having regard to Clause 7 of the Terms of Use of the
plaintiff’s website, which had to be agreed to before any information is
imparted to a would be consumer of its product.
Clause of the Terms of Use provides as follows: –
“Applicable law and jurisdiction. It is a condition precedent to the use
of the Ryanair website, including access to information relating to flight
detail, costs etc., that any party submits to the sole and exclusive
jurisdiction of the Courts of the Republic of Ireland and to the application
of the law of that jurisdiction, including any party accessing information or
facilities on their own behalf or on behalf of others.”
In essence, Ryanair is seeking disclosure of the identity business details
of the third party provider referred to throughout the affidavit of Mirko
Richter, sworn on the 14th June, 2010, and as identified in the German
proceedings wherein it is set out that the plaintiff company sends the
relevant data, inter alia, to Ytsilon.net AG.
In essence the plaintiff, Ryanair, seeks disclosure of the relevant details
of Ytsilon.net AG to enable it to join the “third party provider” to these
proceedings. It is contended that Ryanair is clearly suffering a wrong
and that the issue to be determined will relate to the entities committing
the wrongful act. It is alleged that Ryanair’s terms and conditions of use
prohibit any other person from selling Ryanair flights, and yet Ryanair
flights are being sold through the first named defendant’s websites and
whether this is caused by the first named defendant and/or a third party
provider is a matter yet to be determined. The plaintiff maintains that
there is a clear breach of its terms and conditions of use. In order to
enable the court to consider the issue as to jurisdiction and to completely
adjudicate upon and settle all the questions involved in the cause,
the relevant third party providers should be joined as party to these
proceedings.
Further, it is contended on the plaintiff’s behalf that even if the first
named defendant is not engaged in any wrongful conduct and is thus an
innocent party, pursuant to EMI Records v. Eircom [2005] 4 I.R. at p.
148, this Court has the power to make an order against the first named
defendant if the court is satisfied that a wrong is being committed.
The first named defendant accepts that the parties have agreed to
ask this Court to decide as a preliminary issue whether the court has
jurisdiction to direct such disclosure in circumstances where there is as
yet an undecided pending challenge to jurisdiction under the Brussels
Regulation.
The first named defendant relies on the fact that in its plenary summons,
as issued on the 14th August, 2009, Ryanair claims a Norwich Pharmacal-
type substantive relief, in that it prays for:
“An order directing the defendant, its servants and/or agents to make
full disclosure to the plaintiff of all information in its possession or
procurement which identifies or assists in identifying all individuals,
companies and/or other persons who are or were involved in any activities
which may infringe or have infringed the plaintiff’s rights including but not
limited to the plaintiff’s trademarks and the plaintiff’s database rights.”
The first named defendant’s claim that the Irish Courts do not have
jurisdiction and in relation to the jurisdiction of this Court it is submitted
that as regards Article 5(1) of the Brussels I Regulation the substantive
contractual obligations that the plaintiff is attempting to rely on in this
action are negative obligations and that, in those circumstances, no
special jurisdiction for contractual matters can be given and the plaintiff
must bring its contractual claim in Germany, being the place of domicile
of the first defendant. The first defendant further submits that, insofar as
their activities could be said to be “harmful events” within the meaning
of Article 5(3) of the Brussels I Regulation, it is clear that those events
take place in Germany, the location of the first defendant’s technical and
business operations.
At paragraph 17 of the plenary summons it is further claimed:
“An order for any appropriate reliefs under the European Communities
(Enforcement of Intellectual Property Rights) Regulations 2006 (S.I. No.
360 of 2006).”
It is contended on behalf of the first named defendant that the order
sought by the plaintiff in these proceedings in its interlocutory motion is
the directing of disclosure, which is the same relief it seeks from the court
in the substantive action as part of its final relief.
The first named defendant relies on the Brussels Regulation and, in
particular, Article 2(1) of the Council Regulation EC No. 44/2001 of
the 22nd December, 2000, on Jurisdiction and the Recognition and
Enforcement of Judges in Civil and Commercial Matters where in it is
stated:
“Subject to this Regulation persons domiciled in a member state shall
whatever their nationality be sued in the courts of that member state.”
In these proceedings the first named defendant has entered a conditional
appearance and by notice of motion dated the 4th February, 2010, has
challenged jurisdiction and this application is still pending.
As the first named defendant is domiciled in Germany and as the guiding
principle of the Brussels Regulation is that persons are to be sued in the
courts of the member state in which they are domiciled, in essence, the
first named defendant contends that the issue as to jurisdiction is open to
significant argument.
The first named defendant relies on the necessity for the plaintiff to
demonstrate the requisite consensus between it and the first named
defendant herein, and that this consensus must be clearly and precisely
demonstrated. It is further contended that in this regard this Court
when dealing with the jurisdiction aspect would have to be able to
readily decide whether it has jurisdiction on the basis of the Rules of the
Convention without having to consider the substance of the case.
Counsel for the first named defendant has referred to the judgment of
Clarke J., in Ryanair Ltd v. Bravofly Ltd and Travel Fusion Ltd [2009] IEHC
41 at paras. 7.11 and 7.12.
As Clarke J. stated in the course of his judgment, it would be most
unsatisfactory if a court was required to enter into a detailed inquiry in
relation to the underlying facts giving rise to the proceedings similar
to that which would need to be conducted to determine the central
issues in the substantive proceedings in order for the court to determine
jurisdiction. He did accept that there could, however, be cases where the
unsatisfactory situation as identified could not be avoided.
It is contended on the first named defendant’s behalf that what the
plaintiff is seeking in this application is an order the would require a
response other than the normal interrogatory situation pursuant to
the Rules of the Superior Courts and is, in effect, a Norwich Pharmacal
Order for the identification of an alleged wrongdoer. This, in fact, is the
substantive relief as sought by the plaintiff herein. It is contended on
the first named defendant’s behalf that it is not permissible for Ryanair
to circumvent the effect of the Brussels Regulation by seeking Norwich
Pharmacal relief in an interlocutory application where a jurisdictional
challenge by a German domiciled defendant is pending. Further, if such a
process were to occur in the framework of a jurisdictional challenge, it can
hardly be stated that the jurisdiction had been readily decidable.
It is contended on the first named defendant’s behalf that the real
purpose of Ryanair’s application for disclosure is to advance its
substantive case and to join a third party to these proceedings.
In these circumstances it is contended that there is no power for the
Court to direct the disclosure sought and in this matter would effectively
grant Ryanair a relief which it seeks in the prayer of its plenary summons
as final relief, especially where this Court has yet to decide whether it has
jurisdiction under the Brussels Regulations to hear the substantive action.
As matters presently stand the jurisdictional issue remains open to be
determined both in these proceedings and in the proceedings between
the same parties as taken in Germany. It is clear that in the German
proceedings the first named defendant in these proceedings maintains
that it does not directly access or use the plaintiff’s websites, but rather
it interacts with a partner/third party. The unusual feature is that in the
German proceedings, in a document entered on behalf of the first named
defendant, the case is clearly made out that the first named defendant
in these proceedings has a contractual relationship with Ytsilon.net AG,
and that this entity provides an electronic interface for numerous travel
agencies that enables flight data to be queried and the flights offered
by the plaintiff company and numerous other low cost airlines to be
booked. After the customer has entered the flight data he wants onto
the Ytsilon.net AG site, the first named defendant herein sends these
details on to, inter alia, Ytsilon.net AG and they identify the flights that
match the customer’s desired data and they then return these flights to
the first named defendant company herein, and they are then offered to
the customer on the first named defendant’s internet site as part of the
booking transaction along with offers from other flight data providers.
As has been pointed out to the court the entity accessing the Ryanair
website has to agree to the terms and conditions before proceeding to
obtain the relevant information.
In essence, the first named defendant is maintaining a case that it does
nothing wrong because, in fact, it is not accessing the plaintiff’s websites
and that such accessing that is carried out is committed by a third party
service provider. However, on its own admission the first named defendant
accepts that that service provider provides it with the information that
was obtained from the Ryanair website.
The first named defendant advances a strong contention in respect
of jurisdiction, and further that, if this application were to succeed it
effectively grants one of the primary reliefs as sought in the plenary
summons.
The rights and entitlements of the respective parties have to be balanced
and, in my view, the overriding feature of this case is that there is a prima
facie demonstration of a wrongful activity in the use of the plaintiff’s
websites. The first named defendant is attempting to hide behind the
activities of a service provider who actually accesses the plaintiff’s website
and delivers the information back to the first named defendant. The very
fact of the first named defendant’s claim that it does not actually access
the plaintiff’s website is also a feature in respect of the jurisdictional
issue.
I am satisfied that the plaintiff makes out a case for the making of the
order which is sought. The reality of the situation is that the first named
defendant for its own purpose was prepared to disclose the factual
background identifying the particular service provider in the German
proceedings as set out in court documentation. Accordingly, it is apparent
that the first named defendant was prepared to reveal the identity of the
service provider website for its own purpose in the German proceedings
but not prepared to reveal the identity of that entity for the purpose of
these proceedings and, in my view, that situation has the potential to
create an injustice.