Friday, 16 July 2010

Jurisdiction clauses in internet terms and conditions

There is a paucity of case law on the effectiveness of terms and conditions used on the Internet. Not surprising, in one way: consumers aren't going to fall over themselves to take action against website operators - or vice versa, especially as there doubt about whether the terms and conditions are enforceable in the first place. There is  now an Irish case on the effectiveness of a jurisdiction clause, which tells us something about the value of website terms and conditions in general.
The case is Ryanair Ltd v GmBH [2010] IEHC 47, a High Court judgment in which the claimant took exception to the defendant's "scraping" activities to provide material for its price comparison website. This involves collecting information from another person's website for use on your own, and it was in breach of the terms of use on the Ryanair site which were linked in the usual fashion from the home page. Presumably it is not the sort of extra that Ryanair would permit on payment of a charge. The judgment was on a preliminary application in which the defendant sought to have the claim dismissed for want of jurisdiction by virtue of the provisions of Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“the Brussels Regulation”) as transposed into Irish law by the European Communities (Civil and Commercial Judgments) Regulations, S.I. No. 52 of 2002. Its argument was that Article 2 of the Regulations insisted that proceedings should be brought in the defendant's domicile.
Article 2 does indeed provide just that, but there are exceptions to it. In particular, Article 23 envisages the position being modified by agreement, so the question became one about the enforceability of the terms and conditions - had a legal relationship been created?
 The Court held that there was a binding contract: the terms were “fairly brought to the attention of the other party”, clearly visible and not concealed in any way. In an earlier case involving the same claimant, Ryanair Ltd. v Bravofly and Travel Fusion Ltd. [2009] IEHC 41, the Court had held that if a contract containing a jurisdiction clause is held to be void and unenforceable, the Court will be guided by the jurisdiction clause when determining issues of jurisdiction
The fact that both parties were commercial concerns is of some importance: a court would be less likely to make a consumer submit to the jurisdiction of a foreign court. Commercial entities would be assumed to understand better than consumers how website terms and conditions work, and - of course - the defendants had terms and conditions on their own website.There was no "click-wrap" licence here, but the defendant's repeated use of the claimant's website, with teh terms being present, was enough to convince the court.

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