Quote:
Originally Posted by Chris
Thank you 
I will have a proper read of that, however based on the couple of links I read so far (Ryanair's own, plus the Tele), I am wondering how clear a comparison there is between terms and conditions governing a financial transaction (where a contractual relationship has been deliberately and verifiably created in a way recognisable in common law) and terms and conditions that seek to control access to something that is entirely in the public domain without any financial consideration being due. |
I think you'll find that quite a few of those cases deal with EACH of those issues separately - certainly the Irish one does. The articles are fairly informative and clear, particularly the Shoosmith and Outlaw.com sites which are presumably non-partisan.
The issues raised in the court cases cited, included - a dispute over court jurisdiction, a dispute over applicability of terms and conditions, a dispute over who was "using" the data (the screen scraper or the purchaser of the tickets), a dispute over copright issues, also reference to trademark issues, "passing off" issues, and a discussion of technical blocking measures - the articles go into all those, expressing various opinions.
The Irish case looked at most of them. (One German case CheapTickets BV eventually went against Ryanair on appeal, but they won a different German case against Vtours GmbH. An English case against TUI UK focussed on website Terms of Use, and was in the High Court - no appeal as far as I am aware) And the legal discussions on the site all then go on to speculate about the applicability of database content rights - which obviously is specific to Ryanair and similar types of commercial site.
Where RyanAir relied on their Terms of Use in their actions, they relied on a clear url link and published Terms online - and that was specifically accepted by the Irish High Court. (Other options include specifically sending Terms to potentially unwelcome visitors, with acceptance conditions included, where subsequent access of a site involves acceptance of the conditions - a clearly created contractual relationship - exactly the sort of conditions contained in Opal Telecoms site and many others, but in these cases, SENT to the visitor, rather than just relaying on a url - Opal even forbid deep linking to their site in their terms of use.)
Given how active Ryanair have been, I think we can say there is case law available in a number of EU jurisdictions so far on a fair variety of issues related to this situation.
Because Phorm "offered" their optout to websites, by compiling their list of websites that didn't want to be part of their scheme, there was little appetite for any legal challenge by websites in that area, and as the Phorm system has never so far been commercially deployed properly, website rights have never really featured because a lack of deployment meant a lack of evidence.
But website rights have always been sitting in the background, and they look as if they are coming to the fore nowadays. The issue that seems to be causing dispute HERE is whether a non-commercial site can notify and then enforce conditions of access on an unwanted site visitor. I can say that absolutely NO legal reason has yet been put forward to justify that claim.