A Norwich Pharmacal order does not breach EU
Article 8 data protection guarantees says Supreme Court
Rugby Football Union v. Consolidated Information Services Limited
(Formerly Viagogo Limited) (Liquidation) [2012] UKSC 55
On the 21 November 2012, the
Supreme Court handed down judgment that unanimously dismissed an appeal brought
by Consolidated Information Systems Limited, a firm in liquidation formerly
known as Viagogo Limited (Viagogo).
The Court held that the granting
of a Norwich Pharmacal order in
favour of the Rugby Football Union (RFU) - requiring Viagogo to disclose the
names and addresses of certain sellers and buyers registered with their website
- did not breach Article 8 of the Charter of Fundamental Rights of the European
Union, which guarantees the protection of personal data.
As the governing body for rugby
union in England, and the owner of Twickenham rugby stadium, the RFU is
responsible for issuing tickets for international and other rugby matches
played at the stadium. The RFU issues the tickets in accordance with their
policy to promote the sport by allowing tickets to be sold at affordable prices.
The RFU issues tickets to various
participants in the sport, via affiliated rugby clubs, referee societies, schools
and other bodies which organise rugby matches. To protect their policy, the RFU prints on the
back of each ticket contractual terms which the future buyers and sellers of
the tickets agree to when submitting an application form. The terms stipulate
that the tickets are at all times the property of the RFU, and that they are
not to be sold at a price which is more than the face value of the ticket; a
breach of these terms would render the offending ticket null and void.
Viagogo was an online ticket
distributor, where buyers and sellers could register their interests and
purchase tickets at a price that had been calculated by ‘current market data’.
In monitoring the distribution of tickets during the autumn period of 2010, RFU
found that tickets were being sold on Viagogo’s website for up to £1,300 each,
where the face value was £20-£55. In pursuing a remedy for the breach of their
policy, RFU requested Viagogo to release the information of the individuals
concerned so redress could be sought for breach of contract. Viagogo refused.
In response to Viagogo’s refusal,
RFU made an application to the High Court for a Norwich Pharmacal order be made against Viagogo requiring the
disclosure of the names and addresses of the individuals concerned in selling
the tickets in breach of their contractual terms. The High Court granted the
order on the grounds that the RFU had a good arguable case, that there was an
apparent breach of contract by the sellers of the tickets, and that the order
was the most suitable option available to RFU to obtain redress.
Viagogo successfully applied to
appeal the judge’s order. Whilst the case was pending an appeals hearing,
Viagogo sought and was granted leave to introduce a new ground for resisting
the grant of the Norwich Pharmacal
order. It was submitted that the granting of the order was an unnecessary and
disproportionate interference in the individual rights of those concerned,
pursuant to Article 8 of the Charter of Fundamental Rights of the European
Union which guarantees the protection of personal data. The Court of Appeal
upheld the High Court’s earlier decision, finding that the RFU had no readily
alternative means of pursuing the wrongdoers.
The argument concerning the
proportionality in the granting of the order versus the protection of
individual’s personal data formed the context in which the Supreme Court heard
the appeal.
In unanimously dismissing the
appeal, the Supreme Court held that in considering whether a Norwich Pharmacal order should be
granted, the court must consider all the circumstances on a case-by-case basis.
In delivering the Court’s judgment, Lord Kerr said that an order must be
necessary and proportionate in all the circumstances, as the purpose of a Norwich Pharmacal order was to do
justice in the case. In making this
assessment, relevant factors included the strength of the particular case and
whether the alleged wrongdoers knew, or would have been likely to know, that the
acts they were committing were wrong.
The Court held that Article 8 was
indeed applicable in this instance, as the disclosure of personal data fell
within the scope of European law. In considering whether the order had breached
the individuals’ Article 8 rights, the Court employed the test of proportionality, weighing: (i) the
benefit of the information sought by the RFU, and (ii) the impact disclosure was
likely to have on the individuals concerned.
The Court rejected Viagogo’s
argument that such considerations should be restricted to the particular
benefit that obtaining information relevant to an individual might bring. The Court
considered it unrealistic not to consider the RFU’s wider aim of discouraging
others in the future from flouting its rules. Furthermore, there was nothing in
the European cases cited or otherwise, which supported the notion that the
wider context of why the RFU sought the order should not be considered.
Regarding the rights of
individuals, the Court held that these should indeed be the subject of intense focus;
however, in the present case, disclosure pursuant to a Norwich Pharmacal order did not result in oppressive or unfair
treatment. The information sought was limited to the names and addresses of
those who bought and sold tickets in clear breach of RFU’s policy, and it was
therefore proportionate to have made the order.