E-commerce service providers can contractually prevent other websites from copying factual information from their website for commercial use, such as for price comparison purposes.
On 15 January 2015, the Court of Justice of the European Union (CJEU) confirmed in a preliminary ruling that websites not protected by a database right, are free to impose contractual restrictions on the use of their data. Interestingly, the CJEU acknowledged that the contractual restrictions could - if national law permits - be imposed through the website's terms and conditions.
Let's have a quick look at how this matter arose. Since the early days of online reservations, some websites discovered that they could attract a lot of visitors by comparing the online prices displayed by e-commerce websites selling competing goods and services. Originally such third party websites were called "content aggregators" and today one particular type, so-called "price comparison" websites, is widely-known. To be able to aggregate such content and create added-value for the consumer, these websites use automated software that visits the e-commerce websites and copies the latter's pricing information in real time. This practice is often referred to as "screen scraping" and frequently occurs in the online travel reservation business. Some of these third party websites do not only show the compared prices of airline tickets but act as an intermediary for booking travel packages, including car and hotel rental services on top of the airline ticket, often after adding a commission.
In response, low-cost airlines quickly started taking legal action against such screen scraping practices, fearing the loss of such additional, revenue-generating services to these third party websites and also through suffering reputational damage when consumers were not properly informed about issues such as flight changes and cancellations. In these circumstances there was one case between the low-cost airline, Ryanair, and the third party website owner, PR Aviation BV, in which the Dutch Supreme Court made a preliminary ruling request to the CJEU.
The CJEU, in its preliminary ruling on the scope of database protection and contractual freedom, ruled in Ryanair's favour. It concluded that, in the absence of any database related copyright or sui generis protection on Ryanair's website, Ryanair was expressly allowed to lay down contractual limitations on the use of its website by third parties. Ryanair would not have had such contractual freedom if its database enjoyed copyright or sui generis database protection (due to the restriction laid down in Article 15 of the Database Directive 96/9/EC). Ryanair's terms and conditions, to which users had to visibly agree when searching for flights (but without needing to explicitly tick a box), indeed stated that the use of any automated system or software to extract data from its website for commercial purposes was prohibited. Ryanair even went as far as to explicitly state that other websites could not sell its flights and that price comparison websites had to enter into a written licence agreement with Ryanair, to access Ryanair's price, flight and timetable information for the sole purpose of price comparison.
As a consequence of the CJEU's ruling, any website making available mere factual information not protected by any legal right, can still prevent others from using such information through its terms and conditions. Clearly, that website will have to demonstrate under applicable (national) law that the website visitor is contractually bound, in particular because it validly agreed to such terms and conditions. Depending on the applicable law, such agreement by the consumer could be considered as having taken place by ticking a box or merely after having been made aware of the website's terms and conditions.
The CJEU's ruling is likely to impact upon the business model of a number of content aggregating/price comparison websites. The ruling's concrete relevance, however, will have to be assessed on a case-by-case basis.
