Ryanair has announced that it intends to cancel all flight tickets which have not been purchased directly from its Web site or call centre. Any ticket procured from a travel agent employing screen-scraping technology to pull off flight and seat price data from the Ryanair Web site will no longer be valid. Ryanair intends to advise customers that their flights have been cancelled by using the e-mail address supplied at the time of booking. As some of the addresses supplied will be those of the travel agents involved and not the customer then, unless there is good housekeeping on behalf of the travel agent, customers will arrive at the airport only to discover at that stage that their flight has been cancelled.
This year, Ryanair successfully sued travel agent Vtours in the German courts, for infringement of its copyright and terms of use of its Web site caused by screen scraping. Bravofly announced that, as a result of legal action in Ireland and Italy by Ryanair, it will cease screen-scraping Ryanair’s Web site. Other Web sites on Ryanair’s hit list include Opodo.com, Atrapalo.com and OTBeach.com. In the UK, database copyright infringement is thought to be the main cause of action for Ryanair to prevent screen-scraping. But what of the customer whose seat has been cancelled by Ryanair, merely for contracting with Ryanair via an online travel agent?
Screen-scraping
Screen-scraping is when one company takes information from another’s Web site by automatically filling in forms and harvesting the results, using specialist software. Some online travel companies scrape airline sites to offer their customers a choice of flights, without manually entering in the information to all Web sites each time. Screen-scraping software is therefore very useful for online travel agents but can slow down the Web site being scraped, as the Web site can be manipulated by the screen-scraper each time a customer enters data requesting a search for flights, taking up bandwidth. Some low-cost flight operators like Ryanair do not make their itinerary available to online travel agents, nor do they allow searches by purely price comparison Web sites (which also rely on screen-scraping software).
The screen-scraping technology allows an online travel agent’s booking tools to send the customer’s details from its Web site automatically. The online travel agent effectively completes all the order details on the customer’s behalf on the Ryanair Web site. In some instances, the agent enters its own contact details. The customer never leaves the original price comparison site. Screen-scraping Web sites account for about 0.5% of Ryanair’s bookings, which is equivalent to about a thousand a day.
One of Ryanair’s complaints is that, as a result, service updates, flights and cancellations are not sent directly to the customer. Instead, the customer is reliant on the travel agent to keep him updated. Another complaint is that Ryanair’s terms and conditions are not provided to the customer or are not provided comprehensively. Effectively, the customer has entered into a contract with Ryanair but the terms of the contract (and any changes to those terms) may not be known to the customer.
The travel agent is acting on behalf of the customer. Therefore, if the agent fails to sufficiently pass on the contract details, the customer can take its complaint against the travel agent for failing in its duty of care towards it and not Ryanair. Assuming that Ryanair’s terms do apply to the contract, will those terms allow Ryanair to cancel the seats, on the basis that they may have been legally procured by a customer via a third party using unscrupulous methods?
Ryanair’s Terms
Following Ryanair’s announcement, its terms and general conditions of carriage read that all bookings for Ryanair flights must be made directly on its Web site or via its call centre. Any booking made via a third-party Web site or online travel agent may be cancelled without notice or refund. There is also a general provision in Ryanair’s conditions of carriage that it may refuse to carry a customer if the customer has been notified that Ryanair will not carry them. Ryanair refuses to be liable for any consequential loss or damage arising from such refusal to carry or cancellation. Press releases following Ryanair’s announcement indicated that cancelled seats booked to date with online travel agents would trigger an automatic refund. From Ryanair’s current terms, however, it looks like this might no longer be the case.
Consumers
Most of Ryanair’s customers travel as consumers, largely on holiday. The Association of British Travel Agents and consumer watchdog Which? have already denounced Ryanair’s plans, with ABTA reportedly saying the move was ‘foolish’. The Office of Fair Trading (OFT) is yet to comment, but with new consumer legislation only just in force, this could spring an interesting test case.
The Consumer Protection from Unfair Trading Regulations 2008 contains a catch-all category for unfair commercial practices by traders to consumers: the ‘failure to meet professional diligence’. This is described as the standard of skill and care required by honest practice or good faith in the relevant consumer market. This applies to conduct once the contract has been made, as well as leading up to the purchase of flight seats. A consumer who has purchased tickets through an online travel agent prior to the announcement without knowledge of a right for Ryanair to cancel for that reason, could claim that a failure to honour a contract for which he has paid the full fare is not fulfilling that standard of care. Ryanair, and its responsible officers, could be open to criminal and civil liability, including fines, an injunction and prison sentences.
The Unfair Terms in Consumer Contracts Regulations 1999 requires contracts with consumers to be reasonable and in plain English. The OFT could take legal action against Ryanair if the latest additions to its terms are contrary to the regulations. Indeed the OFT has previously sought a considerable number of undertakings from holiday companies and charter airlines in relation to their terms and conditions when dealing with consumers. The overriding principle is that terms of business need to be reasonable to be enforceable.
If Ryanair’s cancellation policy is not reasonable, cancelling a ticket could put Ryanair in breach of its terms with the consumer. This will lead to consideration of the knock-on effect of cancellation without informing the customer. Customers turning up at the airport to find they have no seat will have booked their accommodation at their destination, possibly car hire or train tickets and may even have a connecting flight. Customers may have to pay the increased cost of a different airline seat in order to continue with their trip. Is it therefore reasonable for Ryanair to cancel a seat, for which it has received the correct fare, because it claimed the customer was being ripped off? All things being equal, a consumer is likely to be less concerned about any surcharge and more about the possibility that he might not reach his destination. The consumer might sue Ryanair for the cost of his arrangements abroad, assuming that Ryanair’s exclusions of liability are also unreasonable.
Illegality
Ryanair says that screen-scraping is illegal. Its victory in the German courts has backed it up. Over here, the Court of Appeal said in Birkett v Acorn Business Machines Limited [1999] EWCA Civ 1866 that courts would not enforce a contract which was illegal or contrary to public policy. Could Ryanair be relying upon this in order to successfully enforce its cancellation policy?
Illegality can arise in the formation of a contract, which means that the purpose of the contract itself must be illegal. It is unlikely that screen-scraping for the cheapest flight seat as a method of deciding which airline to contract with causes the purpose of the subsequent contract to be illegal. Interestingly, in Birkett v Acorn, the Court of Appeal acknowledged that to deny enforcement of the contract on the ground of illegality would mean that the defendant would escape liability and sought to redress the balance through the allocation of costs. How much further would a court go if the claimant was a consumer?
No Contract?
The consumer point is academic if the court was to find no contract between Ryanair and the customer, through lack of certainty of the terms of the contract if the online travel agent has not provided them to the consumer. However, the court is likely to try and find a contract in this situation.
Ryanair’s contract could be with the online travel agent, who then sold on the flights to the consumer. This finding would hinge on whether the online travel agent was acting as a true agent. The risk of not being found to be an agent is most acute where the online travel agent sells a Ryanair flight along with another element of a holiday, for example accommodation or car hire. The Package Travel Regulations 1992 place primary responsibility for the consumer firmly at the door of the travel agent. However, the Department for Business and Regulatory Reform still has to elucidate a definition of what constitutes a package, so identifying whether Ryanair’s contract is with the online travel agent on this basis is not straightforward.
If the online travel agent is forming a package and is not an ‘agent’, what impact does that have? Firstly, consumer law will not apply which will make Ryanair’s activities more difficult to challenge. Secondly, Ryanair’s terms will more easily govern the relationship for carriage of the customer without challenge, as they apply in a business-to-business environment. Under such circumstances, the courts are more inclined to leave them well alone. Under the terms, tickets are not transferable. The refusal to carry following notice also still applies, a right likely to be more enforceable in a contract with an online travel agent. Therefore Ryanair is more likely to be able to cancel the booking, which would be bad news for the agent as it would be liable to the consumer to provide a holiday but would not have the flight component. However, the right to cancel applies to tickets purchased via a travel agent, not necessarily by a travel agent, and therefore there may be wriggle room for the agent in these circumstances.
Conclusion
If the threat to cancel tickets purchased through an online travel agent is a real one, Ryanair looks like it might just be flying by the seat of its pants.
Catherine Stromdale is a Senior Solicitor in the Projects and Commercial department at Wragge & Co LLP: catherine_stromdale@wragge.com
