Is crawling Instagram pages legal

BGH considers "screen scraping" to be permissible: travel portals are allowed to read Ryanair flight data

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by Askan Deutsch, LL.M. (SLU)

30.04.2014

Cheaptickets, Opodo, Fluege.de or off-on-vacation may also continue to offer Ryanair flights. The low-cost airline wanted to prevent this with its terms and conditions, but failed before the BGH for the time being. That promotes transparency in the air travel market, believes Askan German. In addition, Ryanair is doing itself a disservice by refusing.

The automatic readout of flight data on the airlines' websites (screen scraping) is not unfair, the Federal Court of Justice (BGH) decided on Wednesday and thus overturned the appeal judgment and referred Ryanair's complaint to the Higher Regional Court (OLG) Hamburg (ruling v. April 30, 2014, Az. I ZR 224/12).

The Billflieger had sued a travel portal that brokered flights on the Internet. Customers can search for flight connections on the page. The portal compares the offers of numerous airlines to determine the cheapest flight. Most airlines provide their flight details voluntarily through a central database, but some do not - like Ryanair.
In these cases the travel portal uses software to read out the data.

So when a customer selects a Ryanair flight on the travel portal, their data is automatically entered in the background on the Ryanair website and the flight is booked there in their name. The travel portal charges agency fees for this, which are added to the Ryanair flight costs on its website.

Ryanair doesn't want any of that. The airline prefers to sell its flights exclusively via its own website or call center, also in order to be able to advertise and sell other products and additional services.

No unfair surreptitious subscription

Unlike the OLG Hamburg, the BGH does not consider this to be an unfair surreptitious purchase according to § 4 No. 10 of the Act against Unfair Competition (UWG) and refers the matter back. Ryanair can still sell its services in a reasonable manner. The airline is also not excessively impaired in its competitive development opportunities.

In addition, there were no other signs of unfairness, because simply overriding Ryanair's express will to refrain from screen scraping is not enough. Overcoming technical protective devices could be unfair, but just ignoring the general terms and conditions (GTC) accepted with a mouse click is not.

According to the BGH, Ryanair's interests do not outweigh those of the general public. The flight broker's business model promotes price transparency in the air travel market and makes it easier for customers to find the cheapest flight connection. In contrast, Ryanair only has an interest in consumers perceiving the advertising on the website and possibly booking additional services.

Ryanair is doing itself a disservice

The BGH is thus promoting transparency in flight bookings on the Internet. Consumers don't have to go through each airline website and compare prices to find the cheapest flight.

Even after the ruling, however, flight portals are only allowed to access the flight data on the airlines' websites if no technical protective devices are overcome. The airline's website must not be demonstrably slowed down by the permanent screen scraping or the display on the search mask for the merely mediated Ryanair flights must not be misleading.

The ruling is not a license for screen scraping, but it does send a clear signal in favor of the free re-use of flight data on the Internet. In the end, flight agents even promote competition and the business of low-cost airlines by also selling their flights to customers who would not have searched the Ryanair and Co. pages themselves. Flight portals are not always transparent, but competitors and associations can prevent such violations by issuing warnings and legal action.

The Hamburg Higher Regional Court could object to the behavior of the travel portal from the point of view of misleading or protection of services, for example by creating an incorrect impression of cooperation with Ryanair (Section 5 UWG) or if the Ryanair services are deceptively imitated or the data for them from others Reasons are obtained dishonestly (§ 4 No. 9 UWG).

Ryanair could also introduce technical protection mechanisms to prevent the data from being read out. In any case, it will be more difficult for airlines to monopolize internet bookings. With all of this, Ryanair is doing itself a disservice by preventing travel portals from brokering their flights. In the end, the consumer decides whether to book directly on the airline's website for price reasons or other advantages or whether to prefer booking with a flight agent.

The author Askan Deutsch, LL.M. (SLU) is a lawyer and partner of the law firm FPS Partnerschaftsgesellschaft mbB in Hamburg and Attorney-at-Law in New York and advises clients from the Hamburg office. His main areas of activity include competition and trademark law.