Unmasking the touts

Ticket re-sale website Viagogo has been made to provide the personal contact details of those people who used their website to advertise or sell tickets to certain international rugby matches (The Rugby Football Union v Consolidated Information Services Ltd (Formerly Viagogo Ltd) (In Liquidation) [2012] UKSC 55).

The Rugby Football Union (RFU) is the governing body of rugby union in England, with sole responsibility for issuing tickets for international and other rugby matches played at Twickenham stadium. Demand for tickets often exceeds supply. However, rather than allowing this high demand to inflate ticket prices, the RFU developed “a deliberate policy to allocate tickets so as to develop the sport of rugby and enhance its popularity” (per Lord Kerr).

Most tickets for international matches are distributed to affiliated rugby clubs, referee societies and schools, for onward sale. The RFU’s terms and conditions clearly state that reselling a ticket or advertising it for sale above its face value will constitute a breach of contract and render the ticket null and void. Those terms are printed on the tickets themselves and applicants also expressly agree to them when submitting ticket application forms. Tickets remain the property of the RFU at all times.

The RFU, anxious to protect its ticket policy, had previously sought injunctions against ticket touts and unlicensed corporate hospitality providers, and took disciplinary action against clubs which had not complied with its terms and conditions. However, to facilitate effective enforcement steps, the RFU clearly needed the identity of the offending entities. Things proved a little more complicated when it came to ticket re-sale websites.

Viagogo operated such a website, on which people sold tickets to sporting and musical events on an anonymous basis. The website would suggest a price based on “current market data” when the sellers registered the tickets for sale, and Viagogo received a percentage of the price paid for the ticket. The mark up on such tickets could be substantial, for example, in the run up to the autumn international matches in 2010, and the 2011 Six Nations, tickets with a face value of £20 to £55 were being advertised for up to £1,300 each.

Identifying touts

In March 2011, the RFU issued proceedings in the High Court seeking a Norwich Pharmacal order disclosing the identities of those who had advertised or sold tickets for matches on Viagogo. Tugendhat J granted the order, ruling that the RFU had a good arguable case that those who had received tickets from the RFU, and those who subsequently bought and sold such tickets, had been guilty of breach of contract and (appropriately) conversion. People who had used resold tickets to gain entry to the stadium were arguably guilty of trespass. He further ruled that the information sought by the RFU was necessary to obtain redress and that it was appropriate to exercise his discretion to order the disclosure sought. Viagogo appealed.

The Court of Appeal upheld ?Tugendhat J’s findings on breach of contract and trespass, and agreed that the RFU had no readily available alternative means of discovering who the possible wrongdoers were, except via a Norwich Pharmacal order.

Presumably realising that it had to up its game Viagogo also introduced a new ground for resisting the disclosure of its users’ details, namely that it constituted an unnecessary and disproportionate interference with their rights to protection of their personal data under article 8 of the Charter of Fundamental Rights of the European Union (the Charter). The Court of Appeal kicked this argument into touch too, holding that any interference with personal privacy rights resulting from the order was proportionate in light of the RFU’s legitimate objective (obtaining redress for the arguable wrongs).

The Supreme Court’s judgment focused on the issue of whether granting the order breached article 8 of the Charter.

The Supreme Court confirmed that the essential purpose of the remedy was to do justice. The justification for disclosure would only exist where it was necessary and proportionate in all the circumstances. The remedy did not however need to be one of last resort.

Lord Kerr held that the courts must exercise their discretion “by a careful and full weighing of all relevant factors”. (See Lord Kerr’s summary of these factors, above).

Article 8(1) of the Charter provides that “everyone has the right to the protection of personal data concerning him or her”. However, that right is circumscribed by article 52(1), which requires any limitation on the right to be provided for by law and to respect the essence of those rights.

Proportionality and human rights

Viagogo argued that, in considering whether a Norwich Pharmacal order would be appropriate, the court must evaluate the impact of the disclosure sought on the particular individual that sold their ticket(s) online against the value to the RFU of that information about that particular individual, ie the Court of Appeal should have asked whether obtaining information about a particular person who had sold a ticket at more than face value would benefit the RFU to such an extent that it outweighed that individual’s article 8 rights. In Viagogo’s view, the value of obtaining each particular individual’s personal contact details should be considered in isolation, rather than within the broader context of the RFU seeking to deter such illicit re-sales.

Lord Kerr regarded Viagogo’s reasoning as “somewhat artificial, not to say contrived”.
“There is no logical or sensible reason to disregard the wider context in which the RFU wants to have access to this information,” said Lord Kerr.

When considering proportionality in the Norwich Pharmacal context, Lord Kerr approved the approach set out by Arnold J in Goldeneye (International) Ltd v Telefonica UK Ltd [2012] EWHC 723 (Ch). Applicants can therefore expect the courts to assume that where two Charter or Convention articles are in the balance, neither will ordinarily take precedence over the other. Where the values are in conflict, “an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary”. The justifications for interfering with or restricting each right must be taken into account and, finally, the proportionality test must be applied to each.

However, Lord Kerr did not agree that an intense focus on the rights being claimed would, in this case, lead to the conclusion that the individuals would have been unfairly or oppressively treated. All that would be revealed was the identity of individuals who had “flouted” the terms and conditions on which the RFU supplied their tickets. The “entirely worthy motive” of the RFU in seeking to maintain the price of tickets at a reasonable level was not only in the interests of the sport but of the public generally.

The RFU is claiming this as an emphatic victory and has threatened tough sanctions to keep their tickets off secondary ticket sites and in the right hands. Viagogo claims this was a hollow victory and that its business is booming. On this occasion, the greater good took precedence over the rights of the affected individuals. However, the Supreme Court did confirm that the particular circumstances of the affected individuals would always merit close consideration and may, in some limited instances, displace the interests of the applicant, even where there ?is no immediate alternative remedy.

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