A Delaware judge has refused an application by Ryanair (FR, Dublin International) to dismiss a counterclaim brought against by online travel agent (OTA) Booking.com, which forms part of a long-running legal dispute between the two entities about Booking.com and its subsidiaries selling Ryanair tickets on their OTA platforms.
In an April 7, 2023, judgement, US Circuit Judge William Bryson denied all of Ryanair's applications except one regarding Booking.com's allegations of defamation relating to Ryanair's public statements. Booking.com's five-point counterclaim has alleged tortious interference with business relationships, unfair competition, defamation, trade libel, and deceptive trade practices on the part of Ryanair.
The Booking.com counterclaim is part of a legal stoush that goes back to 2020 and centres on the practice of Booking.com scraping flight information and using that information to sell Ryanair tickets on its various OTA platforms, including Priceline, Agoda, and Kayak. Ryanair's terms and conditions expressly forbid this practice, and it sued parent entity Booking.com in 2020, alleging violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Booking.com then brought five state law counterclaims against Ryanair, which the airline has unsuccessfully sought to dismiss.
Booking.com's so far successful counterclaim case has relied on statements made by Ryanair in public and to Booking.com's customers about OTAs. Booking.com says emails to their customers who purchased Ryanair tickets made several statements about OTAs, including that the sites are "unauthorized," that the sites "may apply massive mark-ups to fares or ancillary products," that the sites use "screen scraping" software to "mis-sell" Ryanair flights, and that the sites provide "false payment and contact details" to Ryanair. Booking.com also says Ryanair made social media posts about OTAs and issues regarding refunds for flight tickets and potentially fraudulent behaviour in the purchase process.
Much of the legal discussion in the counterclaim case centred on the meaning and motive of Ryanair's emails and social media posts. Ryanair's legal representatives argued that the emails and social media posts did not meet the required thresholds to substantiate the various counterclaims. In all but one point, Bryson disagreed. Ryanair's motion to dismiss Booking.com's counterclaims is denied," he said, "except with respect to Booking.com's allegations of defamation relating to Ryanair's public statements."
Ryanair succeeded with that because they argued all the statements referenced in Booking.com's pleadings are made about OTAs generally and not specifically to Booking.com. "As the Third Circuit has explained, statements that disparage a group may not serve as a basis for an individual defamation claim unless a reader could reasonably connect them to the complaining individual," reads Bryson's judgement. "Booking.com has not plausibly alleged that the public statements made by Ryanair could reasonably be connected to Booking.com."
However, that win for Ryanair only concerns public statements - the social media posts, not the emails to specific Booking.com customers, which Bryson says contain references that plausibly refer to Booking.com. "The fact that the messages were sent specifically to customers of Booking.com supports the inference that the statements referred to Booking.com," the judgement said. Accordingly, Booking.com's defamation claim will not be dismissed on the ground that Booking.com has failed to refer to Booking.com in any of its communications with customers."
In a potentially ominous sign concerning Ryanair's broader battle to prevent Booking.com from selling its tickets, last week, the Swiss Supreme Court ruled in favour of OTA BravoNext, a lastminute.com subsidiary, after a 15-year legal battle. The court decided that the OTA could continue including Ryanair in its fare comparison and purchase opportunities across its various platforms, also ordering Ryanair to pay legal costs. CEO of lastminute, Luca Concone, says making any flight ticket available on its OTA platforms "fosters transparency and drives growth and competition in the market."
