RFU kicks ticket exchange wrongdoers triple into touch
Published 16 January 2013 By: Louise Millington-Roberts
The landmark ruling handed down by Mr Justice Tugendhat in March 2011 in the Rugby Football Union –v- Viagogo case, was a triumph for rights holders who require a means by which they can discover the identity of the anonymous wrongdoer who advertises and/or sells tickets via a ticket exchange. Despite attempts to set aside the ruling in the Court of Appeal and the Supreme Court, the appeals have been unanimously dismissed. An important precedent has now been set by the Supreme Court which for the first time gives the rights holder the ability to obtain Norwich Pharmacal relief, to implement and enforce its ticketing policy and potentially take action against the wrongdoer.
The RFU –v- Viagogo Limited  EWHC 764 (QB)
The requirement for disclosure to be made by the ticket exchange was found by the High Court to be both proportionate and necessary. In this particular case, Tugendhat J found that the RFU had a seriously arguable case against a wrongdoer which entitled the RFU to seek Norwich Pharmacal relief as the RFU had put appropriate measures in place to enable action to be taken against a wrongdoer.
The RFU maintained (and it was accepted) that an original applicant and subsequent re-seller were in breach of contract with the rights holder by advertising and/or selling a ticket. A further condition which the RFU was able to rely upon was the retention of ownership clause, since all rights in a ticket are extinguished when the conditions are breached, the ticket becomes void, and a ticket re seller commits an act of conversion. It was further accepted that there is no licence if the ticket holder is not authorised to enter a Stadium and therefore a ticket holder was arguably a trespasser.
Tugendhat J found that the RFU was seeking to redress the arguable wrongs of the wrongdoer, that the information was necessary to achieve the redress against the wrongdoer, and that it was appropriate to exercise discretion when granting the Order.
The RFU v Viagogo Limited  EWCA Civ 1585
Leave to appeal was refused by Tugendhat J; however Viagogo applied to the Court of Appeal to appeal the Order. It was necessary for Lord Justice Longmore and others to consider the Judgment of Tugendhat J and shortly before the hearing a further ground was adduced by Viagogo for resisting the granting of the Order. Viagogo maintained that the Order would constitute an interference with the wrongdoers' personal rights under Articles 7 and 8 of the Charter of Fundamental Human Rights of the EU and the provisions of the Data Protection Act 1998.
Longmore LJ considered again whether it was proportionate to make the Norwich Pharmacal Order which would entail the disclosure of personal data. Longmore LJ confirmed the findings of Tugendhat J that the RFU had an arguable case against a wrongdoer, that it intended to seek redress and the Order was necessary as the RFU had no other means of discovering the identity of the wrongdoer. He also held that "there can be no reasonable expectation of privacy in respect of data which reveals such arguable wrongs and Viagogo's own conditions of business point out to their customers that there may be circumstances in which their personal data will be passed on to others".
The RFU –v- Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation)
Again, the ruling was upheld by the Supreme Court and the case unanimously dismissed. Lord Kerr and others reviewed the steps taken by the RFU to protect and enforce its ticketing policy; at this time it was no longer disputed that the re sale of tickets facilitated by Viagogo constituted an arguable wrong.
When adducing evidence it was necessary to establish the RFU's motives, outlining how over the years injunctions had been sought against ticket touts and unlicensed operators, disciplinary action had been taken against member clubs and how it had been necessary to engage in the monitoring of ticket re sales via websites to enable cease and desist letters to be sent accordingly to wrongdoers. As wrongdoers selling via Viagogo were anonymous the RFU therefore had no option but to apply for Norwich Pharmacal relief.
The Supreme Court considered the correct threshold to apply when assessing the proportionality of Norwich Pharmacal orders, analysing and restating the Norwich Pharmacal principles which are required to be satisfied in order for an Order to be made. Lord Kerr found that the need for an order for disclosure will only be found to exist if it is both necessary and proportionate, in all circumstances.
The Supreme Court considered relevant factors including:
- the causes of action available to the rights holder;
- whether the ticket exchange knew or ought to have know that it was facilitating arguable wrongs;
- whether the information was available from an alternative source;
- the privacy rights of the wrongdoer.
In this particular case the challenge to the decision made by the Court of Appeal rested exclusively on the claim that the Court of Appeal had applied the wrong test in assessing whether it was proportionate to make a Norwich Pharmacal Order. Viagogo maintained that the Supreme Court should evaluate the benefit the information will have to the RFU, and specifically requested that the Supreme Court not consider the wider ramifications of the value of the disclosure of the information. Lord Kerr found the suggested approach "somewhat artificial, not to say contrived". He also stated that "it is unrealistic to fail to have regard to the overall aim of the RFU in seeking this information". Lord Kerr found that the value of the disclosure in a broader context must also be considered, such as acting as a deterrent to others who resell in breach of ticket terms and conditions.
The case is important as it has shown that individual data privacy rights can be over-ridden where there is a greater good to protect.
The significance of the decision for the ticketing industry
The re sale of tickets is a major source of income for the entire events industry. In some cases it is the only source of revenue for an event organiser and therefore it is fundamental for a rights holder or event organiser to be able to enforce the ticket terms and conditions.
Aside from weighing the balance between the rights of a rights holder and the privacy rights of an individual, the case has shown that it is of paramount importance for a rights holder to implement sufficient measures which include establishing a robust ticketing policy, to enable it to enforce its rights, obtain undertakings and recover illegitimate profit made by wrongdoers.
It is envisaged that the decision should act as a deterrent to ticket re sellers who have a blatant disregard for a rights holder's ticketing policy as it is now possible that their identity will be disclosed and action taken against them. The decision should also ultimately lead to a ticket exchange reassessing its strategy with regards to the provision of a platform by which wrongdoers can advertise and sell anonymously.
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Louise has extensive experience working with major brands in the field of sport, media, commercial and intellectual property law, providing practical commercial advice on specialist legal matters including rights and brand protection, the commercialisation of brand, sponsorship, endorsement, and event management.