Joel Smith and Christopher Sharp consider the recent Supreme Court decision concerning obtaining information about wrongdoers, particularly the use of Norwich Pharmacal relief and the balance to be struck with the data protection rights of individuals
The UK Supreme Court has recently considered the correct test for assessing whether Norwich Pharmacal relief should be ordered in circumstances where an individual's data protection rights may be affected (The Rugby Football Union v Viagogo Limited  UKSC 55).
The Rugby Football Union is the governing body for rugby union in England and the owner of Twickenham stadium. It is responsible for issuing tickets for international and other rugby matches played at Twickenham. Given the growing popularity of the sport and the limited capacity of the stadium, the demand for tickets to matches at Twickenham greatly exceeds the number available. However, rather than increase the price, the RFU deliberately allocates tickets so as to develop the sport and further enhance popularity – the majority of tickets are sold by the RFU to rugby clubs, schools, referee societies and other organisations that organise rugby.
The terms and conditions of the sale of tickets to such organisations stipulate that any resale of the ticket above face value will constitute a breach of the contract rendering the ticket null and void. When submitting applications for tickets to the RFU, applicants are required to indicate their agreement to these terms and conditions. The condition is also printed on the tickets themselves.
The defendant, Viagogo, operated a web site that provided a means for ticketholders to advertise for sale, amongst other events, tickets to matches at Twickenham. Intended purchasers could buy the tickets from those that wished to sell them. Importantly, the Viagogo web site allowed the ticketholders to sell the tickets anonymously at the going market price. That price was based on current market data provided by Viagogo, and Viagogo received a percentage of the price paid for the ticket. In some cases ticket prices were as much as £1,300 (compared to the face value of £20 to £55).
The RFU's Claims
The RFU took objection to Viagogo's web site, alleging that the secondary market in tickets at above face value for matches at Twickenham impinged directly on its policy of promoting the sport by making tickets available at affordable prices. The RFU sought to identify the sellers of the tickets to stop the alleged abuse. However, given the anonymity afforded by the Viagogo web site, the identities of the sellers were not apparent from investigations.
The RFU therefore brought proceedings in the High Court against Viagogo for disclosure of information which it considered was required in order to take action to protect its policy in relation to the sale of tickets.
Norwich Pharmacal Relief
The English courts have a discretionary jurisdiction to provide relief to a prospective claimant to enable that person to obtain information in order to seek redress for an arguable wrong. That jurisdiction was confirmed in the 1970s by the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners. In that case the court stated that, if a person through no fault of his own gets mixed up in the tortious acts of others so as to facilitate their wrong-doing, he may come under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. Since then, Norwich Pharmacal relief has been successfully used in many different cases in order to obtain disclosure, for example to identify those who have posted defamatory comments on a web site, made music available for download, and (more recently) been involved in peer-to-peer file sharing.
A number of those cases have explained the scope of the relief and the factors that the court should take into account when deciding whether to exercise its discretion. In particular, disclosure will be ordered only if it is a necessary and proportionate response in all the circumstances.
The RFU's Application for Relief
At first instance in the High Court ( EWHC 764 (QB)), Mr Justice Tugendhat agreed with the RFU that there was a good arguable case that those individuals that had received tickets from the RFU and then re-sold those tickets at above face value were liable for breach of contract and/or conversion, and that those purchasers who entered the stadium by use of a ticket obtained in contravention of the RFU's terms and conditions were liable for trespass. The judge decided, therefore, that the information sought by the RFU from Viagogo as to the identities of those individuals was necessary to allow the RFU to seek redress, and that it was appropriate for the court to exercise its discretion.
In the Court of Appeal ( EWCA Civ 1585), Viagogo raised a new defence – the making of a disclosure order would constitute an unnecessary and disproportionate interference with the rights of those alleged wrongdoers. Those rights derived from Article 8 of the Charter of Fundamental Rights of the European Union which guarantees the protection of personal data. The Court of Appeal dismissed that defence and upheld the judge's decision.
In the Supreme Court, the case revolved solely on Viagogo's defence in relation to the Charter of Fundamental Rights.
Data Protection and European Rights
In the European Union, Directive 95/46/EC (the Data Protection Directive) governs issues of data protection. Article 1 states that member states shall protect the fundamental rights and freedoms of natural persons and in particular their right to privacy with respect to the processing of personal data. The Data Protection Directive includes criteria for making data processing legitimate (Article 7) and also possible exemptions to restrict the scope of the data protection provisions when such a restriction constitutes a necessary measure to safeguard the protection of the rights and freedoms of others (Article 13(1)(g)).
The Data Protection Directive was implemented into national law in the UK by the Data Protection Act 1998. The Government chose to enact Article 13(1)(g) of the Data Protection Directive by exempting the data protection provisions in circumstances required by law or made in connection with legal proceedings (s 35 of the Act).
The data protection legislation in the UK is a creature of European law. It is therefore subject to interpretation in light of the Charter of Fundamental Rights of the European Union, which itself was given direct effect in member states by the adoption of the Treaty of Lisbon in 2009. Article 8 of the Charter states that every person has the right to the protection of personal data concerning him or her, and such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law.
However, the rights in the Charter can be limited, although Article 52(1) states that the rights and freedoms can only be limited subject to the principle of proportionality.
The Supreme Court's Decision
In the Supreme Court, Viagogo argued that the previous courts had applied the wrong test in assessing the proportionality of the making of a disclosure order. Viagogo considered that, when considering proportionality, on one hand the court should evaluate the impact that the disclosure of the information will have on the individual concerned (ie the data subject), and on the other the court should evaluate the value to the applicant of the information that can be obtained about that particular individual. In particular, Viagogo argued that the court must conduct that examination solely by reference to the particular transaction, and that any broader context should not be considered (eg in the case of the RFU, deterring other individuals from selling or buying tickets above face value).
Lord Kerr, who gave the judgment on behalf of all five members of the Supreme Court, thought that such an approach was artificial, and that it was unrealistic not to have regard to the overall aim of the RFU in seeking the information – active discouragement of others who may flout the rules in the future.
In addition, the Supreme Court approved the test for proportionality when considering competing rights as set out by Mr Justice Arnold earlier this year in Goldeneye (International) Limited v Telefonica UK Limited  EWHC 723 (Ch). In that case the judge was asked to order Norwich Pharamcal relief in circumstances where the data subjects – customers of an ISP – had been identified as possible downloaders of copyright protected pornography. In evaluating competing rights under the Charter (intellectual property rights versus data protection rights), the judge stated that the approach should be that:
(i) neither right has precedence over the other,
(ii) where the values under the two rights are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary,
(iii) the justifications for interfering with or restricting each right must be taken into account, and
(iv) the proportionality test – or 'ultimate balancing test' – must be applied to each.
Applying this test to the case of the RFU, Lord Kerr considered that all that would be revealed by the disclosure would be the identity of those who have engaged in the sale and purchase of tickets in breach of the RFU's terms and conditions. Lord Kerr thought that the entirely worthy motive of the RFU in seeking to maintain affordable ticket prices promoted the sport and was in the interest of the public.
The Supreme Court therefore decided to uphold the previous decisions and order that Viagogo make available to the RFU the information sought.
The decision from the Supreme Court is a helpful reminder of the circumstances where disclosure can be obtained from a third party in order to seek legal redress against wrongdoers. In this case, the RFU sought disclosure from the operator of a ticketing web site in order to bring proceedings against individuals that were selling tickets to matches at Twickenham at prices above face value, in direct contravention of the terms and conditions printed on the ticket.
Such disclosure is possible in the UK under the Norwich Pharmacal principles, a powerful remedy available to claimants in order to obtain information for the purposes of seeking legal redress. The Supreme Court had to balance the rights of the RFU to obtain such information against the fundamental data protection rights of those individuals that had sold tickets, and approved useful guidance as to the exercise of that balancing test.
Joel Smith is a Partner in the Intellectual Property group at Herbert Smith Freehills LLP in London: firstname.lastname@example.org
Christopher Sharp is a Senior Associate in the Intellectual Property group at Herbert Smith Freehills LLP in London: email@example.com