UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

On 14 June 2012, the Supreme Court heard an appeal in The Rugby Football Union v Viagogo Ltd [2011] EWCA Civ 1585, a case likely to clarify the threshold for obtaining Norwich Pharmacal disclosure orders and have wide-ranging implications for those seeking to curtail the resale of events tickets on the black market.

The key issue for the Supreme Court was the appropriate weight to be attributed to competing interests when assessing the proportionality of granting a Norwich Pharmacal order, with the Court being been asked to strike a balance between alleged wrongs on one hand and the data protection rights of alleged wrongdoers on the other.

The appeal was heard by a five justice panel of Lady Hale and Lords Phillips, Kerr, Clarke and Reed.

The facts

The RFU is the governing body for English rugby and owner of the English national rugby stadium, Twickenham. As such, it is responsible for organising home international matches betweenEnglandand other nations, both as a part of the annual Six Nations competition and other year-round test matches. As the organiser of these events, the RFU is responsible for setting the price of match tickets and selling them to the public. The RFU’s objective in selling tickets for England internationals is not to generate profit for the RFU but to promote and develop the sport of rugby. Accordingly, ticket prices are kept to a minimum, with a view to covering expenses whilst encouraging involvement and growing interest in the sport.

In light of this, and as a result of the huge popular demand for tickets for England rugby matches, ticket touts are able to resell tickets for huge profits on the black market. Although such re-sales constitute a breach of the terms and conditions upon which the RFU sells match tickets, the scale and value of the black market has made it difficult for the RFU (and other event organisers) to prevent the resale of their tickets and sanction those who have breached its terms and conditions by engaging in reselling. This has proved particularly difficult in recent years, as touts have flocked online to exploit the cloak of anonymity provided by the internet.

Viagogo is a secondary ticketing website that facilitates the reselling of tickets by allowing members of the public to advertise and sell tickets at their chosen price. It provides an online exchange through which the resale transactions occur, and there is no suggestion of any wrongdoing on their part. The RFU is seeking an order from the court requiring Viagogo to provide identifying information for the individuals who been offering tickets for resale via the Viagogo website, in order to enable the RFU to take legal action against those individuals.

The law

It is an established principle of English common law that, where a third party has become innocently involved in the facilitation of wrongdoing committed by an unidentified party against a potential claimant, that third party can be required by the court to identify those individuals responsible for the wrongdoing in order that relief may be sought by the injured party. It is a principle enshrined in the decision of the House of Lords in the case of Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, and in particular the following paragraph from Lord Reid (para. 12):

“If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”

By virtue of their origin, such orders have since become known as Norwich Pharmacal orders, and have become an invaluable procedural tool in allowing potential claimants to gather information in preparation for prospective claims. The correct test to be applied when assessing whether such an order should be granted is now relatively established and, as a wholly equitable remedy, involves a degree of discretion on the court’s part as to whether the making of an order is just.

Norwich Pharmacal orders were originally commonly used in fraud case, for example against banks to identify customers who had used accounts with those banks to facilitate a fraud. However, in recent years, they have also been commonly used against internet intermediaries such as internet service providers and website operators to reveal the subscriber details and IP addresses of anonymous internet users.

Of particular importance to the discretionary element of whether Norwich Pharmacal orders should be made is the application of the personal data and privacy rights of the individuals alleged to have committed the wrongdoing. Under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, the individuals in respect of whom RFU are seeking information are entitled to respect for their private and family life and to the protection of their personal data. Accordingly, the court must have regard to the provisions of the Data Protection Act 1998 when deciding whether Viagogo should be ordered to provide the RFU with the personal information of the alleged wrongdoers.

Although there is a provision in the Data Protection Act that allows for interference with an individual’s right to data protection in connection with legal proceedings (see section 35), the ECJ jurisprudence is clear that such interference must be both necessary and proportionate (see the decisions of the ECJ in Case C-73/07 Satakunnen [2008] and Case C-92/09 Schecke v Land Hessen [2010], paras 72-77).

The issue before the Court is therefore the correct threshold to be applied when assessing the proportionality of granting a Norwich Pharmacal Order in situations where there are privacy and data protection rights to be taken into consideration.

Decisions of the lower courts

The matter that fell before Tugendhat J in the High Court was the simple application of the established Norwich Pharmacal criteria to the facts in question; there was, at this stage, no submission from Viagogo as to proportionality or the relevance of data protection. Identifying the relevant factors to be considered, Tugendhat J concluded that each of the requirements had been met and that accordingly it was right to grant relief.

On appeal to the Court of Appeal, Martin Howe QC on behalf of Viagogo submitted the new argument that to grant a Norwich Pharmacal order would represent a breach of the alleged wrongdoers’ personal data rights that was neither necessary nor proportionate. The RFU argued in response that, notwithstanding that the argument had not been put to the High Court in these precise terms, the issues of necessity and proportionality had been considered by Tugendhat J as part of the general discretion of the court. Accepting this suggestion, Longmore LJ concluded that the question before it was therefore whether the High Court had been too easily persuaded that the relief sought was necessary and proportionate.

In a relatively brief judgment given by Longmore LJ on behalf of the Court of Appeal (approved by both Patten LJ and Rafferty LJ), Viagogo’s appeal was dismissed and the decision made by the High Court was reaffirmed. Turning to Viagogo’s submission on proportionality, Longmore LJ suggested that where the usual criteria for granting a Norwich Pharmacal order had been satisfied (as it had in this case), it would generally be proportionate for such an order to be made. It was held that the fact that Viagogo’s own terms and conditions pointed out to its customers that it would in certain circumstances be required to pass on their personal information to third parties meant that there could be no reasonable expectation of privacy where arguable wrongs had been committed. In light of the fact that the granting of an order was the only way in which the wrongdoers could be exposed, it was clearly necessary for such an order to be made, and necessity and proportionality would in cases such as this go hand in hand. Further, the limited nature of the personal details being disclosed (being limited to just names and addresses) was deemed by Longmore LJ to be both just and proportionate.

Comment

The ability of ticket touts to buy tickets at face value and sell them on at a huge profit has long been a frustration for event organisers and paying members of the public alike. The release of tickets for any popular event, whether it is sporting or musical, will usually be followed shortly after by the appearance online of tickets being offered at prices aimed at exploiting the chasm between supply and demand. The ability of an event organiser to take legal action in order to identify and sanction those engaged in such reselling would therefore represent a significant victory in the battle against the ticketing black market.

More importantly, the principles of the Norwich Pharmacal jurisdiction have in recent years been stretched and, in some cases, abused. For example, in Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375 (QB), Mr Justice Parkes refused to grant a Norwich Pharmacal order to disclose the names and IP addresses of Sheffield Wednesday fans who had made abusive comments on a fan website because it was not proportionate to do so. Clarity from the Supreme Court as to the correct test to apply when assessing proportionality will therefore be welcome.