The Supreme Court has upheld an application by the Rugby Football Union (RFU) for an order requiring a ticket sales website to disclose details of individuals who had used the site to sell tickets to rugby matches at Twickenham at inflated prices, in breach of contract with the RFU.(1) The decision clarifies the balancing exercise that the court must undertake when considering Norwich Pharmacal disclosure applications, which are made against third parties that have become 'mixed up' in another party's wrongdoing. It is also a reminder of the role of Norwich Pharmacal principles in coming to the aid of a wronged party who, without access to information held by third parties, cannot identify the wrongdoer and thus cannot obtain a legal remedy.
A Norwich Pharmacal order is a pre-action order sought against a third party for disclosure of information or documents to enable the applicant to obtain details of wrongdoing committed by another, which the applicant would otherwise be unable to obtain.(2)
The paradigm case is where the applicant knows that it has been wronged, but not by whom, while a third party could identify the wrongdoer, thus allowing the applicant to bring an action. The third party against which the order is sought must have facilitated or otherwise been involved (although innocently) in the wrongdoing. The order is not available against mere bystanders or parties that would be witnesses in the action.
As Lord Reid made clear in Norwich Pharmacal:
"if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing 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."(3)
Unsurprisingly, such applications are commonly issued against internet service providers or website owners in order to ascertain the individuals who might properly be the subject of actions for infringement of copyright, defamation or breach of privacy.
However, the duty to disclose is not absolute. Authorities emphasise the need for flexibility and discretion. Disclosure will be ordered only if it is a "necessary and proportionate response in all the circumstances".(4)
Various factors have been identified as relevant to that balancing exercise, including:(5)
- the strength of the cause of action contemplated by the applicant;
- the strong public interest in allowing an applicant to vindicate its legal rights;
- whether the making of the order will deter similar wrongdoing in future;
- whether the information could be obtained from another source;
- whether the respondent knew, or should have known, that it was facilitating arguable wrongdoing;
- whether the order might reveal the names of innocent persons as well as wrongdoers and, if so, whether such innocent persons will suffer any harm as a result;
- the degree of confidentiality of the information sought;
- the privacy rights of the individuals whose identity is to be disclosed;
- the rights and freedoms, under the EU data protection regime, of the individuals whose identity is to be disclosed; and
- the public interest in maintaining the confidentiality of journalistic sources.
The RFU is the English governing body for rugby union. It owns Twickenham Stadium and is responsible for issuing tickets for rugby matches held there. The RFU's terms and conditions stipulate that any ticket resale or advertisement of a ticket for more than its face value is a breach of contract that renders the ticket null and void.
In the run-up to the 2010/2011 season, the RFU discovered that the Viagogo website had been used to advertise thousands of tickets for games at Twickenham. Tickets with a face value of £20 to £55 were being advertised for sale at up to £1,300. The Viagogo website allowed prospective sellers to advertise and sell tickets anonymously to interested purchasers. Viagogo received a percentage of the price paid for the ticket.
The RFU issued proceedings against Viagogo seeking disclosure, under Norwich Pharmacal principles, of the identity of those who had advertised for sale or sold those tickets. The High Court accepted that there was a good arguable case that those who had received tickets from the RFU and the subsequent sellers and buyers of the tickets had been guilty of breach of contract and/or conversion, and that individuals who had entered the stadium using a ticket obtained in contravention of the conditions were arguably guilty of trespass. The High Court found that:
- the RFU was properly seeking redress for this;
- the information was necessary to achieve that redress; and
- it was appropriate to grant the relief.
Viagogo appealed to the Court of Appeal, introducing a new argument that the grant of a Norwich Pharmacal order would constitute an unnecessary and disproportionate interference with the rights of the arguable wrongdoers. The rights in question 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 the appeal. It confirmed the High Court decision that the RFU had an arguable case for breach of contract and trespass and that the RFU had no readily available alternative means of discovering who the possible wrongdoers were. The Court of Appeal found the interference to the arguable wrongdoers' rights to privacy of personal data to be proportionate in light of the RFU's legitimate objective in obtaining redress for the alleged wrongs.
Viagogo's appeal to the Supreme Court was effectively confined to the claim that the grant of the order would breach Article 8 of the charter. Viagogo argued that in weighing the potential value to the party seeking the material against the interest of the data subject, the court was limited only to considering the particular benefit that obtaining the information relating to an individual data subject might bring. It could not, so Viagogo argued, take into account the broader context: in this case, the RFU's objective of deterring others from wrongfully selling or buying tickets for international rugby matches at Twickenham.
The Supreme Court rejected this analysis and upheld the order. While there must of course be an "intense focus" on the rights being claimed in each individual case, the court held that it would be "artificial, not to say contrived" to fail to have regard to the broader context. There was no logical or sensible reason to disregard the wider context in which the information was sought. The overall aim of the RFU in seeking this information – not simply to pursue individuals, but actively to discourage "others who might in the future contemplate the flouting of rules which the RFU seeks to enforce" – was a factor that the court could, and should, take into account.
Nevertheless, the court stressed that there was no presumption in favour of the grant of an order. Lord Kerr made clear that:
"[t]he particular circumstances affecting the individual whose personal data will be revealed on foot of a Norwich Pharmacal order will always call for close consideration and these may, in limited instances, displace the interests of the applicant for the disclosure of information even where there is no immediately feasible alternative way in which the necessary information can be obtained."
This case provides a welcome restatement of the principles on which Norwich Pharmacal orders may be granted. It emphasises the holistic approach which the courts should adopt, taking into account all of the relevant circumstances. In this case, it was legitimate to consider the RFU's broad objective of preventing ticket resales at inflated prices, which would be in breach of the RFU's terms and conditions. It was unnecessary for the court to limit its consideration to the factors that arose specifically in relation to the dispute between the RFU and the arguable wrongdoers.
The decision will be welcomed by potential claimants whose rights are infringed in a manner that does not allow for the ready identification of the wrongdoer, particularly in the online sphere. If Viagogo's appeal had succeeded, potential claimants would have been unable to rely on broader policy considerations in seeking Norwich Pharmacal relief. This would have confined the Norwich Pharmacal jurisdiction to the most serious of cases.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
(2) For further details please see "No Norwich Pharmacal against innocent, mixed-up lawyers".