The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation)  UKSC 55
The Supreme Court upheld the decision of the Court of Appeal granting a Norwich Pharmacal disclosure order, requiring the respondent to provide the personal details of its customers. This decision is a useful reminder of the factors that the Court will consider when dealing with the question of proportionality in the context of a Norwich Pharmacal order.
Viagogo ran a website which allowed prospective sellers of sporting event tickets to anonymously register tickets they intended to sell and interested purchasers to buy these tickets. Tickets were sold at the going market rate. The Rugby Football Union (“RFU”) sold tickets to third parties, who subsequently sold the tickets for a higher price via Viagogo’s website. The RFU claimed that re-sale in this way resulted in the expiration of the ticket’s licence and impinged on RFU’s policy of promoting rugby via affordable prices of match tickets.
In March 2011, the RFU sought a Norwich Pharmacal order against Viagogo to identify the sellers of the tickets. The High Court granted the order, finding that the RFU was genuinely seeking to redress the alleged wrongdoing and had no reasonable alternative means of seeking the required information.
Viagogo appealed on the basis that the order was an unnecessary and disproportionate interference with those individuals’ rights to the protection of personal data under Article 8 of the Charter of Fundamental Rights of the EU. The Court of Appeal dismissed the appeal, holding that such interference caused by the order was proportionate in light of the RFU’s legitimate objective in obtaining redress for the arguable wrongs. Viagogo appealed to the Supreme Court, arguing that when considering the question of whether the order sought was proportionate, the court should evaluate the impact of the disclosure of the information would have on the individual concerned against the value to the RFU of the information that could be obtained about that particular individual and the value of information in a broader context should not be taken into account.
The Supreme Court rejected the appeal. In giving the leading judgment, Lord Kerr referred to the decision of the Court of Justice of the European Union in Productores de Musica de Espana (Promusiace) v Telefonica de Espana SAU as authority that member states were entitled to legislate for disclosure of personal data in civil proceedings where that was necessary to enable a person with a viable cause of action to pursue it in the courts. When assessing whether disclosure was proportionate, the court was entitled to consider the value of the information sought as part of a broader context.
The Supreme Court reiterated that the test remains one of weighing all the relevant factors and noted that there may be some limited instances where the interests of protecting an individual’s personal data outweigh the interest of the applicant, even where there is no apparent alternative means of obtaining the information sought.
This decision is a useful reminder of the factors that the Court will consider when dealing with the question of proportionality in the context of a Norwich Pharmacal order. It makes clear that when applying the test, the Court is entitled to consider the value of the information to the applicant in a broad context but the fact that the information cannot be obtained by an alternative means will not automatically mean the applicant is entitled to it.