Court of Appeal dismisses appeal from High Court, and affirms refusal to grant an interlocutory injunction to an airline against providers of flight information on web sites, on the grounds that, despite the airline having a strong case that the defendants were bound by the 'terms of use' on its web site: (a) damages would be an adequate remedy if the airline succeeded at trial; (b) the airline had failed to establish substantial inconvenience to customers who used the defendants' web sites to obtain information and book through online travel agents; and (c) a competition law claim advanced by the defendants, while not strong, was sufficiently arguable to reduce the strength of the airline's case on 'terms of use'.
Murray J (nem diss): Claim by airline against operators of web sites - 'meta search sites' - details of airline's flights on site - online travel agents (‘OTAs’) - ‘price, flight and timetabling’ information (‘PFT’) - injunction to restrain sites from including 'false' email addresses for travellers who booked with airline - confusion and difficulties caused for customers - whether plaintiff had strong case that was likely to succeed - whether balance of justice favoured grant of orders - frustration of commercial aims by OTAs - terms of use (TOU) on airline's web site - need to agree to TOU when scraping site - requirement in TOU that information not to be used for commercial purposes - PFT information sourced from web site - strong case to enforce TOU against defendant - competition law defence - route dominance - defendants unable to compete in effective manner in market for price comparison services - expert economist report on markets - balance of justice - adequacy of damages as a remedy - limited evidence of inconvenience to customers.