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Articles | Mon 29th Jun, 2020
This week has been a mixed bag for the travel industry. Virgin Atlantic appears to be sliding towards insolvency, BA has announced that it will make a quarter of its staff redundant, and EasyJet’s GDPR woes aren’t going away. On the other hand, air bridges to Spain, France and Italy are expected to open up shortly, and holiday bookings are on the increase. Destination countries such as Turkey, Cyprus and Sicily are offering would-be tourists incentives to travel – as if we needed any more motivation to go on holiday, after spending three months working from home cheek by jowl with our loved ones. Here at 1 Chancery Lane we’re so desperate to get away that we’re even considering getting out the 1CL yurt and going glamping.
The Great British Break Off
Later this week England will come out of its ‘national hibernation’, with the hospitality industry (including hotels and self-catering accommodation) re-opening on 4th July. This means a return to English tourism significantly earlier than the overseas holiday sector. At the time of writing, the FCO still advises against all but essential international travel, and returning travellers face two weeks of quarantine. An announcement is due imminently over ‘air bridges’ for quarantine-free travel to certain destinations, but this remains uncertain. Take Portugal – one of the most popular holiday destinations, and one of the first countries to announce it would welcome back UK tourists with socially-distanced open arms. It looked as if one of the first air bridges would be between these countries. But Portugal may now be off the list. Booking an overseas holiday runs a risk of a change in quarantine or lockdown rules either here, or there, after booking – or even during the holiday. For those who do make it overseas, with fewer travellers there is the tantalising prospect of much quieter hotels, beaches and attractions; but also the possibility of closed attractions and only partially operating restaurants and so on. No doubt this uncertainty will put off many from making overseas bookings, for now. This means a boom in domestic tourism. Last week saw a surge in bookings with many accommodation providers seeing record sales.
What will domestic, socially-distanced, tourism be like? Detailed guidance has been prepared and it is essential for the sector to follow it to protect staff and customers – and the bottom line, from claims and reputational damage. The guidance emphasises cleaning and reducing contact time as much as possible. Expect one-way systems in hotels and masks in hotel corridors. Hotel spas and pools will remain closed. Dormitories are out. Only two households should eat and drink together indoors; outdoors, two households or groups of up to six can sit together. Customers from different households need to be kept at least one metre apart, even if eating or drinking together. Less obvious steps include minimising background noise, to avoid people needing to raise their voices. Venues will need to provide socially-distanced seating rather than have customers standing indoors (standing outdoors is permitted, with social distancing). Table service should be provided – and contactless ordering (eg via an app) is recommended. Operating kitchens and services behind the scenes will also need to be done so as to properly manage the risk.
All these steps to pose a real challenge to suppliers. But with so much pent up demand, and with overseas travel still a long way off for many people, the potential rewards are enormous. After four months cooped up at home we all need a holiday. And will anything ever taste as good again as the first ‘proper’ pint for four months?
About the Author
Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited  11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.
Incentivising Foreign Travel
As the world starts to open up it would be unsurprising if some holidaymakers remain cautious about international travel. A number of countries have therefore devised increasingly inventive measures to lure tourists back.
Turkey has announced its Safe Tourism Certification Program. This includes insurance packages which will be sold online from 1st July by airlines and tour operators. Cover up to €3,000 will cost €15, up to €5,000 will cost €19 and up to €7,000 will cost €23. Although the available cover is relatively low (and see Russell Wilcox’s article from last week on the potential pitfalls), it will apparently include Covid-19. This may provide some comfort for travellers unable to obtain cover for coronavirus related claims from traditional travel insurers.
In addition, tourist establishments, including hotels and transfer companies, will be able to apply for verification under the Safe Tourism Certification Program. They will do so by applying to authorised international accreditation institutions who will conduct hygiene and health inspections and do compliance assessments, as well as performing inspections and assessments. Verified establishments will be announced on the Turkish Ministry of Culture and Tourism’s website. They will also display the Safe Tourism Certification Program along with QR codes through which guests will be able to access the establishment’s inspection data. Where claims do arise in these establishments (whether arising from coronavirus or not), it is likely that defendants will want to rely on their verification, but claimants should also have transparent access to the inspection data which may be useful evidence.
Cyprus has already pledged to reimburse the costs of anyone who tests positive for Covid-19 after travelling there. The traveller will only have to pay for their airport transfer and repatriation flight, while the Cypriot government will cover their food, accommodation and medical costs.
In addition, they are setting aside a 100 bed hospital specifically for tourists who test positive as well as quarantine hotels for their families, all paid for by the Cypriot government. The quarantine hotels will apparently feature nightly entertainment including bingo and karaoke which guests can enjoy from their balcony along with room service.
The Sicilian local government has announced a €50m scheme to pay for one of every three nights in hotels. There are further plans to purchase vouchers and cards to distribute to tourists giving free entry to cultural and archaeological sites.
In addition to these schemes there are a number of individual hotel and resort chains offering heavily discounted deals in order to attract tourists back. Japan and Switzerland are also proposing subsidies for domestic tourism.
There has still been no change to the FCO’s advice against all but essential travel, even with the significant lockdown easing measures announced this week. The good news, however, is that once UK tourists are free to travel, there are any number of creative schemes to reassure them of their safety, as well as the possibility of some bargain trips.
About the Author
Ella was called to the Bar in 2013. She acts for both Claimants and Defendants now undertakes work in the cross border field on behalf of both Claimants and Defendants. She has particular expertise in claims involving allegations of fundamental dishonesty and has a good deal of experience in conducting trials around the issues which arise from such allegations.
Cyber-attacks and GDPR: More Bad News for EasyJet
The travel industry has faced some of the greatest challenges to its survival during the Covid-19 pandemic. However, as lockdown restrictions ease and air bridges are implemented, it appears that the industry can start getting back on its feet. Despite this, the hard times are not yet over for EasyJet. Following a cyber-attack, which exposed millions of passengers’ personal data, approximately 10,000 people are seeking a Group Litigation Order against the airline.
On 19th May 2020, EasyJet issued a ‘Notice of Cyber Security Incident’ (“the Notice”), in which it detailed that it had been the target of a sophisticated cyber-attack. Around 9 million customers’ email addresses and travel details had been accessed. Of those customers affected, just over 2,000 had their credit cards details acquired. Although EasyJet reportedly contacted the ICO about the data breach in January 2020, they did not inform their customers until some months later.
The group litigation specialist PGMBM has now issued proceedings against EasyJet in the High Court. They indicate that the claims allege breaches under the Data Protection Act 2018 (“the DPA 2018”), which incorporates the EU General Data Protection Regulation (“the GDPR”), misuse of private information and breach of confidence. Further, PGMBM suggest that they will be seeking damages of up to £18 billion on behalf of their clients, principally relying upon Article 82 of the GPDR; this Article provides a right to compensation following material or non-material damage being suffered as a result of an infringement of the GDPR.
Not only does EasyJet potentially face paying out millions in compensation, but it is also likely that the Information Commissioner’s Office will issue the company a fine. In 2019, British Airways was fined £183.39 million following a cyber incident that compromised approximately 500,000 customers’ personal and financial information. Despite the number of data subjects in that instance being lower than Easyjet’s, British Airways had a far greater number of individuals whose credit card details were stolen. It appears that any fine against EasyJet would be lower than that issued to British Airways, due to the difference in the companies’ annual turnovers. Nonetheless, the ICO consider the impact Covid-19 has had upon the airline industry and the proportionality of such a significant fine. Notably, the ICO has delayed the imposition of its fine against British Airways.
As EasyJet faces the possibility of paying out billions in the wake of this cyber-attack, there must be some question as to whether the company can survive. The airline industry faces a slow recovery following the Covid-19 pandemic, given that flights are unlikely to resume to their full capacity for some time. Whilst EasyJet has announced plans to cut its staff and shrink its fleet, such savings may not be enough to keep the company afloat in the wake of the group legal proceedings and inevitable ICO fine.
About the author
Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.
Just when we were starting to think that cruise holidays were a thing of the past, the Norwegian operator Hurtigruten has successfully operated its cruise around the fjords aboard its vessel Finnmarken. The SeaDream Yacht Club, also Norwegian, joined the Finnmarken in the fjords, and river cruises along the Rhine, Danube and Douro are under way. Virgin Cruises’ Scarlet Lady, whose maiden voyage is scheduled for October, is fitted with an air filtration system which Virgin says kills 99.9% of viruses; Norwegian Cruise Line also boasts medical-grade air filtration; and Lindblad Expeditions has treated every surface of its ships with antibacterial spray containing titanium dioxide, which destroys over 90% of microbes. Good news, no doubt, for those champing at the bit to get cruising; but we do wonder whether the cruise operators might find these measures deployed against them in norovirus claims arising from cruises undertaken before they were introduced.