The Rugby Football Union (RFU) had sought to discover the identity of people who had purchased tickets to football games via an online 'scalping' service, with the service operator claiming that the discovery process was contrary to privacy protection under EU human rights law.
The RFU as the governing body for Rugby Union in England has sole responsibility for issuing tickets for all international and other matches played at its Twickenham stadium. Its terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. That stipulation is printed on the tickets and applicants are warned on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times.
Viagogo operated a site that enabled people to sell tickets for RFU games: sellers would register their tickets with Viagogo, a price would be suggested based on current market data and the service provider would receive a percentage of any sale through that virtual meeting of buyer and seller.
The UK Supreme Court judgment notes that the RFU monitors such sites in an attempt to discover whether and by whom tickets were being sold above face value. "This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo". The RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham.
Tickets with a face value of £20 to £55 were being advertised for sale at up to £1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets. xxxxx The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress.In Norwich Pharmacal Company & Ors v Customs And Excise  UKHL 6 Norwich Pharmacal Co, as owner and exclusive licensee of a patent, brought proceedings against the UK Excise Commissioners to force disclosure of information that would identify unknown importers of its patented chemical. The House of Lords held that where an innocent third party had information relating to unlawful conduct, a court could compel that party to assist the injured person by supplying that information. The case established the Norwich Pharmacal disclosure orders against innocent third parties.
Viagogo argued that granting a Norwich Pharmacal order represented a disproportionate interference with the rights of the potential wrongdoers under article 8 (ie protection of personal data) of the EU Charter of Fundamental Rights.
The Court of Appeal upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. Interference with the personal data rights of the individuals was proportionate in light of the RFU’s legitimate objective in obtaining redress for arguable wrongs.
The Supreme Court considered whether the grant of the order involved a breach of article 8 of the Charter. It noted that the essential purpose of an order was to do justice in the case. The need for an order for disclosure will only be found to exist if it is necessary and proportionate in all the circumstances, involved a careful weighing of all relevant factors including -
- the strength of the cause of action,
- whether those who have committed the alleged wrong knew or would have been likely to know that what they were doing was unlawful and
- the privacy rights of those whose identities were to be revealed
The Supreme Court held that the appropriate test of proportionality under Article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned. Lord Kerr comments that it was artificial and unrealistic to suggest that the RFU’s aim of discouraging others in the future from flouting its rules should not be considered. Although the facts of each case must be considered individually there was nothing to support the notion that the wider context for which the RFU wished to have the information should be left out of account.
The court indicated that although there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFU’s ticket policy.
It went on to state that in some limited cases the particular circumstances affecting a person whose data was sought may displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information.