JUDGMENT
The Rugby Football Union (Respondent) v
Consolidated Information Services Limited
(Formerly Viagogo Limited) (In Liquidation)
(Appellant)
before
Lord Phillips
Lady Hale
Lord Kerr
Lord Clarke
Lord Reed
JUDGMENT GIVEN ON
21 November 2012
Heard on 14 June 2012
Appellant Respondent
Martin Howe QC Lord Pannick QC
Tom Moody-Stuart James Segan
(Instructed by Lewis
Silkin LLP)
(Instructed by Kerman &
Co LLP)
LORD KERR (with whom Lord Phillips, Lady Hale, Lord Clarke and Lord
Reed agree)
1. The Rugby Football Union (the RFU) is the governing body for rugby
union in England. It owns the famous Twickenham stadium, the home ground of
the England rugby football team. The RFU alone is responsible for issuing tickets
for international and other rugby matches played at the stadium.
2. As one would expect in light of the growing popularity of rugby union
football, demand for tickets for home international games at Twickenham
regularly greatly outstrips the number of tickets available, notwithstanding that the
stadium has a capacity of 82,000. The RFU does not allow this circumstance to
inflate the cost of tickets, however. On the contrary, it is their deliberate policy to
allocate tickets so as to develop the sport of rugby and enhance its popularity.
Most tickets for international matches are therefore distributed by the RFU to
participants in the sport, via affiliated rugby clubs, referee societies, schools and
other bodies which organise rugby. The distribution of the tickets thereafter
depends on the nature of the body in question. Schools, for instance, are permitted
to distribute tickets to “any member of staff, pupil or genuine sponsor”. Member
clubs are permitted to sell some or all of their ticket allocation (up to a combined
maximum of 4,837 tickets per match across all member clubs) to official licensed
operators who then use those tickets to provide official hospitality packages. The
RFU’s share of the profit from this goes towards the player accident and liability
insurance scheme.
3. The RFU’s terms and conditions stipulate that any resale of a ticket or any
advertisement of a ticket for sale at above face value will constitute a breach of
contract rendering the ticket null and void, so that all rights evidenced by the ticket
are extinguished. Applicants for tickets indicate agreement to these terms and
conditions when submitting ticket application forms and the condition is printed on
the tickets themselves. The terms on which tickets are supplied also include a
condition that the ticket remains the property of the RFU at all times.
4. Consolidated Information Systems Limited, a firm in liquidation, was
formerly known as Viagogo Limited (Viagogo). Viagogo operated a website
which provided the opportunity for visitors to the site to buy tickets online for a
number of different sporting and other events at various venues. Included among
these were tickets for rugby matches at Twickenham. The way in which these
transactions took place was that prospective sellers of tickets could use the website
to register tickets that they intended to sell and interested purchasers could then
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buy the tickets from those who wished to sell them. The website provided a means
by which persons were able anonymously to sell event tickets at the going market
price. A price based on “current market data” was suggested by Viagogo’s website
to potential sellers when they registered a ticket for sale. Viagogo received a
percentage of the price paid for the ticket.
5. The website carried a privacy policy. This was accessed through a link at
the bottom of the website page. It was accompanied by the words, “Use of this
website constitutes acceptance of the Terms and Conditions and Privacy Policy”.
The privacy policy was also brought to the attention of a prospective seller when
he registered on the site.
The steps taken by the RFU to protect its policy
6. The RFU contends that arguable wrongs are involved in the advertisement
and sale of tickets at above face value through the website. The sale of tickets at
above face value, it is argued, impinges directly on the RFU’s policy of promoting
the sport of rugby by allowing tickets to be sold at affordable prices. It is no longer
disputed that the sale of tickets in the manner facilitated by Viagogo’s website
arguably constitutes an actionable wrong.
7. Previously, the RFU has sought injunctions against ticket touts and
unlicensed corporate hospitality providers who were selling tickets in breach of the
conditions on which tickets had been supplied. It has also taken disciplinary action
against clubs that had distributed tickets other than as stipulated by the conditions.
In order to take these actions, of course, the RFU had to discover the identity of the
individuals or clubs involved in the sale of the tickets. It engaged in a system of
monitoring the websites of secondary sellers of tickets in an attempt to discover
whether tickets were being sold above face value and, if so, by whom. This effort
was frustrated in many instances, however, because of the anonymity offered by
websites including that of Viagogo.
8. In the run-up to the autumn international rugby matches in 2010 and the
home matches for the six-nations tournament in 2011, the RFU not only continued
to monitor websites, including Viagogo’s, it also conducted a series of test
purchases from the Viagogo website. It discovered that Viagogo had been used to
advertise thousands of tickets for the seven games that were to be played at
Twickenham. Tickets with a face value of £20 to £55 were being advertised for
sale at up to some £1,300. Blocks of tickets up to 24 were offered for sale.
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9. On making these discoveries, the RFU’s legal advisers wrote to Viagogo
seeking information about the identity of those involved in the sale and purchase
of the tickets. This was resisted. The RFU therefore issued proceedings seeking the
disclosure of the information which it considered was required in order to take the
action that it considered was necessary to protect its policy in relation to the sale of
the tickets.
The proceedings
10. On 21 March 2011 the RFU issued proceedings seeking disclosure, under
the Norwich Pharmacal principles, of the identity of those who had advertised for
sale or sold tickets for the autumn international and six nations matches.
Tugendhat J acceded to the application, finding 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
[2011] EWHC 764 (QB). He also held that those who entered the stadium by use
of a ticket obtained in contravention of RFU conditions were arguably guilty of
trespass. The judge found that the RFU was seeking redress for these arguable
wrongs by obtaining the order that it had applied for; that the information was
necessary to achieve that redress; and that it was appropriate to exercise his
discretion to grant the relief sought.
11. Viagogo appealed the judge’s order. A short time before the hearing of the
appeal, it sought and was granted leave to introduce a new ground for resisting the
grant of a Norwich Pharmacal order. This was to the effect that the making of such
an order would constitute an unnecessary and disproportionate interference with
the rights of those who, arguably, were wrongdoers. Those rights derived from
article 8 of the Charter of Fundamental Rights of the European Union which
guarantees the protection of personal data.
12. The Court of Appeal dismissed Viagogo’s appeal [2011] EWCA Civ 1585.
It confirmed the findings of Tugendhat J that the RFU had an arguable case on the
ground of breach of contract and trespass. It decided that the RFU had no readily
available alternative means of discovering who the possible wrongdoers were other
than by means of a Norwich Pharmacal order. On the argument that such an order
would constitute unacceptable interference with the personal data rights of those
involved in the sale and purchase of the tickets, the Court of Appeal held that such
interference as would be involved by the issue of the order was proportionate in
light of the RFU’s legitimate objective in obtaining redress for the arguable
wrongs.
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13. Before this court, the appellant’s argument was effectively confined to the
claim that the grant of the order would involve a breach of article 8 of the Charter.
The Norwich Pharmacal order
14. The jurisdiction to allow a prospective claimant to obtain information in
order to seek redress for an arguable wrong was recognised by the House of Lords
in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133.
Its scope was described by Lord Reid at p 175:
“… 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. I do not think that it
matters whether he became so mixed up by voluntary action on his
part or because it was his duty to do what he did. It may be that if
this causes him expense the person seeking the information ought to
reimburse him. But justice requires that he should co-operate in
righting the wrong if he unwittingly facilitated its perpetration.”
15. Later cases have emphasised the need for flexibility and discretion in
considering whether the remedy should be granted: Ashworth Hospital Authority v
MGN Ltd [2002] 1 WLR 2033, para 57 per Lord Woolf CJ; Koo Golden East
Mongolia v Bank of Nova Scotia [2008] QB 717, paras 37-38 per Lord Clarke MR.
It is not necessary that an applicant intends to bring legal proceedings in respect of
the arguable wrong; any form of redress (for example disciplinary action or the
dismissal of an employee) will suffice to ground an application for the order:
British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1200 per
Lord Fraser of Tullybelton.
16. The need to order disclosure will be found to exist only if it is a “necessary
and proportionate response in all the circumstances”: Ashworth at paras 36, 57 per
Lord Woolf CJ. The test of necessity does not require the remedy to be one of last
resort: R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs
(No 1) [2009] 1 WLR 2579, para 94.
17. The essential purpose of the remedy is to do justice. This involves the
exercise of discretion by a careful and fair weighing of all relevant factors. Various
factors have been identified in the authorities as relevant. These include: (i) the
strength of the possible cause of action contemplated by the applicant for the
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order: Norwich Pharmacal at p 199F-G per Lord Cross of Chelsea, Totalise plc v
The Motley Fool Ltd [2001] EMLR 750 at first instance para 27 per Owen J, Clift v
Clarke [2011] EWHC 1164 (QB) paras 14, 38 per Sharp J; (ii) the strong public
interest in allowing an applicant to vindicate his legal rights: British Steel at
1175C-D per Lord Wilberforce, Norwich Pharmacal at p 182C-D per Lord Morris
of Borth-y-Gest, 188E-F per Viscount Dilhorne; (iii) whether the making of the
order will deter similar wrongdoing in the future: Ashworth at para 66 per Lord
Woolf CJ; (iv) whether the information could be obtained from another source:
Norwich Pharmacal at 199F-G per Lord Cross, Totalise plc at para 27, President
of the State of Equatorial Guinea v Royal Bank of Scotland International [2006]
UKPC 7 at para 16 per Lord Bingham of Cornhill; (v) whether the respondent to
the application knew or ought to have known that he was facilitating arguable
wrongdoing: British Steel per Lord Fraser at 1197A-B, or was himself a joint
tortfeasor, X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 54 per
Lord Lowry; (vi) 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: Norwich Pharmacal at 176B-C per Lord Reid; Alfred Crompton
Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC
405, 434 per Lord Cross; (vii) the degree of confidentiality of the information
sought: Norwich Pharmacal at 190E-F per Viscount Dilhorne; (viii) the privacy
rights under article 8 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms of the individuals whose identity is to be
disclosed: Totalise plc at para 28; (ix) the rights and freedoms under the EU data
protection regime of the individuals whose identity is to be disclosed: Totalise plc
v The Motley Fool Ltd at paras 18-21 per Owen J; (x) the public interest in
maintaining the confidentiality of journalistic sources, as recognised in section 10
of the Contempt of Court Act 1981 and article 10 ECHR: Ashworth at para 2 per
Lord Slynn of Hadley.
18. Many of these factors are self-evidently relevant to the question of whether
the issue of a Norwich Pharmacal order is proportionate in the context of article 8
of the Charter.
The Data Protection Directive
19. The principal instrument of the EU data protection regime is Directive
95/46/EC (the Directive). Article 1(1) of the Directive provides:
“In accordance with this Directive, Member States shall protect the
fundamental rights and freedoms of natural persons, and in particular
their right to privacy with respect to the processing of personal data.”
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20. Article 6 of the Directive requires that Member States should make
provision to ensure that personal data is processed fairly and lawfully. The concept
of “processing” is wide. The regime enacted by the Directive thus applies to
electronic databases as well as hard copy – article 3(1).
21. Article 7 of the Directive prescribes criteria for making data processing
legitimate, stating in relevant part:
“Member States shall provide that personal data may be processed
only if:
(a) the data subject has unambiguously given his consent; or …
(c) processing is necessary for compliance with a legal obligation to
which the controller is subject; or …
(f) processing is necessary for the purposes of the legitimate interests
pursued by the controller or by the third party or parties to whom the
data are disclosed, except where such interests are overridden by the
interests for fundamental rights and freedoms of the data subject
which require protection under Article 1(1).”
22. Article 13 of the Directive deals with exemptions and restrictions. The
relevant provisions for present purposes are these:
“(1) Member States may adopt legislative measures to restrict the
scope of the obligations and rights provided for in Articles 6(1), 10,
11(1), 12 and 21 when such a restriction constitutes a necessary
measure to safeguard …
(g) the protection … of the rights and freedoms of others”
23. In Case C-275/06 Productores de Musica de Espana (Promusicae) v
Telefonica de Espana SAU [2008] 2 C.M.L.R. 465, para 53 the Court of Justice of
the European Union (“CJEU”) held that the provisions of article 13, as referred to
in article 15(1) of Directive 2002/58/EC concerning the processing of personal
data and the protection of privacy in the electronic communications sector ([2002]
OJ L201/37) must be interpreted as “expressing the Community legislature’s
intention not to exclude from their scope the protection of the right to property or
Page 7
situations in which authors seek to obtain that protection in civil proceedings”.
From this it is clear that it is open to member states to make provision in domestic
legislation that there should be disclosure of personal data in civil proceedings,
where that is necessary to enable a person with a viable cause of action to pursue it
in the courts.
The Data Protection Act 1998
24. The United Kingdom implemented the Directive by the Data Protection Act
1998. Relying on article 13(1)(g) of the Directive the government chose to exempt
from the nondisclosure provisions all disclosures of personal data which were
required by law or made in connection with legal proceedings. The relevant
section of the 1998 Act is section 35, which provides:
“(1) Personal data are exempt from the non-disclosure provisions
where the disclosure is required by or under any enactment, by any
rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions
where the disclosure is necessary-
(a) for the purpose of or in connection with, any legal proceedings
(including prospective legal proceedings), or
(b) for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising
or defending legal rights.”
25. Before a Court makes an order requiring disclosure of personal data, which
would attract the exemption under section 35(1), it must first take into account and
weigh in the balance the right to privacy with respect to the processing of personal
data which is protected by article 1(1) of the Directive: Totalise plc v The Motley
Fool Ltd [2002] 1 WLR 1233 in the Court of Appeal at para 24 per Aldous LJ.
Page 8
The Charter
26. The European Charter was proclaimed by the European Parliament, Council
and Commission at Nice in December 2000. Its purpose was expressed to be the
assembly in a single instrument of those fundamental rights which European
Union law had previously identified in legislation or in decisions of the CJEU. In
its initial incarnation the Charter had persuasive value: the CJEU referred to and
was guided by it (see, for instance, Promusicae at paras 61-70).
27. The Charter was given direct effect by the adoption of the Lisbon Treaty in
December 2009 and the consequential changes to the founding treaties of the EU
which then occurred. Article 6(1) of the Treaty on European Union (TEU) now
provides:
“The Union recognises the rights, freedoms and principles set out in
the Charter of Fundamental Rights of the European Union of 7
December 2000, as adapted at Strasbourg, on 12 December 2007,
which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the
competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be
interpreted in accordance with the general provisions in Title VII of
the Charter governing its interpretation and application and with due
regard to the explanations referred to in the Charter, that set out the
sources of those provisions.”
28. Although the Charter thus has direct effect in national law, it only binds
member states when they are implementing EU law – article 51(1). But the rubric,
“implementing EU law” is to be interpreted broadly and, in effect, means
whenever a member state is acting “within the material scope of EU law”: see e.g.
R (Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR
6 140, paras 66-71 per Lloyd Jones J. Moreover, article 6(1) of TEU requires that
the Charter must be interpreted with “due regard” to the explanations that it
contains.
29. Article 8 of the Charter provides:-
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“1. Everyone has the right to the protection of personal data
concerning him or her;
2. Such data must be processed fairly for specified purposes and on
the basis of the consent of the person concerned or some other
legitimate basis laid down by law …”
30. The relevant explanation about article 8 and to which regard must be had is
in the following terms:
“This Article has been based on Article 286 of the Treaty
establishing the European Community and Directive 95/46/EC of the
European Parliament and of the Council on the protection of
individuals with regard to the processing of personal data and on the
free movement of such data … Reference is also made to Regulation
(EC) No 45/2001 of the European Parliament and of the Council on
the protection of individuals with regard to the processing of
personal data by the Community institutions and bodies and on the
free movement of such data … The above mentioned Directive and
Regulation contain conditions and limitations for the exercise of the
right to the protection of personal data.”
31. Article 52(1) of the Charter sets out the circumstances in which an
interference with the rights expressed in the Charter may be justified:
“Any limitation on the exercise of the rights and freedoms
recognised by this Charter must be provided for by law and respect
the essence of those rights and freedoms. Subject to the principle of
proportionality, limitations may be made only if they are necessary
and genuinely meet objectives of general interest recognised by the
Union or the need to protect the rights and freedoms of others.”
The appeal
32. The RFU accepts that the High Court, when making the order, can be
regarded as “implementing Union law”. Since article 2(a) of the Directive defines
“personal data” as meaning “any information relating to an identified or
identifiable natural person (‘data subject’)”, the names and addresses of
individuals covered by the order qualify as “personal data” under this definition.
That being so, the order of the High Court involved the disclosure of personal data
and was thus within the material scope of EU law.
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33. The appellant’s challenge to the Court of Appeal’s decision rests
exclusively on the claim that it applied the wrong test in assessing the
proportionality of the making of the Norwich Pharmacal order. Put succinctly, the
appellant claims that, in assessing whether the order is proportionate, the court
should evaluate the impact that the disclosure of the information will have on the
individual concerned against the value to the applicant of the information that can
be obtained about that particular individual. Expressed in simple terms which
reflect the circumstances of this case, the court, according to the appellant, should
confine its consideration to the individual transaction and ask, “What value will
the information about this particular individual have to the RFU?”
34. Mr Howe QC, who appeared for the appellant, submitted that Longmore LJ
in the Court of Appeal had been wrong to suggest that it would “generally be
proportionate” to make a Norwich Pharmacal order once it had been shown that
there was arguable wrongdoing and that there was no realistic way of discovering
the identity of the arguable wrongdoers other than by obtaining an order. Rather,
Mr Howe claimed, the court 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 an extent that outweighed that individual’s right to have his or
her personal data protected from disclosure. It was suggested that the way in which
the Court of Appeal had formulated the test involved a presumptive approach. On
that basis it was to be assumed that the need to obtain the information in order to
prosecute an action to vindicate the right to property would in virtually every
instance trump any claim to privacy and protection of personal data. The appellant
contended that this assumption was misplaced. The proportionality of the
interference could only be assessed by concentrating the examination on the
particular circumstances of the individual transaction. In this way, the appellant
claimed, the weighing exercise involved assessing how much benefit would derive
from obtaining information about a single individual as against the infringement of
that particular person’s right to have his or her personal data protected.
35. In advancing this case Mr Howe relied first on the Promusicae case and in
particular paras 65-70 of the CJEU’s judgment in that case:
“65 The present reference for a preliminary ruling thus raises the
question of the need to reconcile the requirements of the protection
of different fundamental rights, namely the right to respect for
private life on the one hand and the rights to protection of property
and to an effective remedy on the other.
66 The mechanisms allowing those different rights and interests to
be balanced are contained, first, in Directive 2002/58 itself, in that it
provides for rules which determine in what circumstances and to
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what extent the processing of personal data is lawful and what
safeguards must be provided for, and in the three directives
mentioned by the national court, which reserve the cases in which
the measures adopted to protect the rights they regulate affect the
protection of personal data. Secondly, they result from the adoption
by the Member States of national provisions transposing those
directives and their application by the national authorities (see, to
that effect, with reference to Directive 95/46, Lindqvist at [82]).
67 As to those directives, their provisions are relatively general,
since they have to be applied to a large number of different situations
which may arise in any of the Member States. They therefore
logically include rules which leave the Member States with the
necessary discretion to define transposition measures which may be
adapted to the various situations possible (see, to that effect,
Lindqvist at [84]).
68 That being so, the Member States must, when transposing the
directives mentioned above, take care to rely on an interpretation of
the directives which allows a fair balance to be struck between the
various fundamental rights protected by the Community legal order.
Further, when implementing the measures transposing those
directives, the authorities and courts of the Member States must not
only interpret their national law in a manner consistent with those
directives but also make sure that they do not rely on an
interpretation of them which would be in conflict with those
fundamental rights or with the other general principles of
Community law, such as the principle of proportionality (see, to that
effect, Lindqvist at [87]; and Ordre des Barreaux Francophones and
Germanophone v Conseil des Ministres (C-305/05) [2007] 3
C.M.L.R. 28 at [28]).
69 Moreover, it should be recalled here that the Community
legislature expressly required, in accordance with Art.15(1) of
Directive 2002/58, that the measures referred to in that paragraph be
adopted by the Member States in compliance with the general
principles of Community law, including those mentioned in Art.6(1)
and (2) TEU.
70 In the light of all the foregoing, the answer to the national court’s
question must be that Directives 2000/31, 2001/29, 2004/48 and
2002/58 do not require the Member States to lay down, in a situation
such as that in the main proceedings, an obligation to communicate
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personal data in order to ensure effective protection of copyright in
the context of civil proceedings. However, Community law requires
that, when transposing those directives, the Member States take care
to rely on an interpretation of them which allows a fair balance to be
struck between the various fundamental rights protected by the
Community legal order. Further, when implementing the measures
transposing those directives, the authorities and courts of the
Member States must not only interpret their national law in a manner
consistent with those directives but also make sure that they do not
rely on an interpretation of them which would be in conflict with
those fundamental rights or with the other general principles of
Community law, such as the principle of proportionality.”
36. Mr Howe suggested that in these passages the CJEU had prescribed a clear
principle that national courts, in dealing with a claim for disclosure of personal
data must weigh the potential value to the party seeking the material against the
interests of the data subject. This unexceptionable claim can be readily accepted; it
is its refinement and development that causes greater difficulty. Mr Howe argues
that in making that assessment, the court must conduct the examination solely by
reference to the particular benefit that obtaining the information relating to an
individual data subject might bring. Its value as part of a broader context is not to
be considered. Thus, for instance, the fact that obtaining the information might
deter others from selling or buying tickets for rugby internationals could not be
taken into account.
37. I find this approach somewhat artificial, not to say contrived. It is
unrealistic to fail to have regard to the overall aim of the RFU in seeking this
information. It is not simply to pursue individuals. It obviously includes an
element of active discouragement to others who might in the future contemplate
the flouting of rules which the RFU seeks to enforce. There is nothing, in my
opinion, in the cited passages from the CJEU’s judgment that supports a restriction
of the matters to be considered by a national court in the manner suggested.
38. It was submitted, however, that the later case of C/461-10 Bonnier Audio
AB v Perfect Communication Sweden AB made it even clearer that the inquiry as to
proportionality was directed to the particular facts of each case and that, in
consequence, broader considerations, extending beyond the specific circumstances
of the data subject, were not to be taken into account. In the Bonnier Audio case
the applicants were publishing companies holding exclusive rights to the
reproduction, publishing and distribution to the public of works in the form of
audio books. They claimed that their exclusive rights had been infringed by the
public distribution of the works without their consent by means of a file transport
protocol server which allowed file sharing and data transfer between computers
connected to the internet. The applicants applied to a district court for an order for
Page 13
disclosure of data for the purpose of communicating the name and address of the
person using the IP address from which it was assumed that the files in question
had been sent. In that case the national measure under consideration permitted an
internet service provider to be ordered to give a copyright holder information on
the subscriber to whom the internet service provider had supplied a specific IP
address which was used in the infringement of the copyright. The principal issue
for the CJEU was whether this was precluded by Directive 2006/24.
39. Particular reliance was placed on paras 59 and 60 of the judgment of the
CJEU:
“59 Thus [the Swedish domestic legislation] enables the national
court seised of an application for disclosure of personal data, made
by a person who is entitled to act, to weigh the conflicting interests
involved, on the basis of the facts of each case and taking due
account of the requirements of the principle of proportionality.
60 In those circumstances, such legislation must be regarded as
likely, in principle, to ensure a fair balance between the protection of
intellectual property rights enjoyed by copyright holders and the
protection of personal data enjoyed by internet subscribers or users.”
40. Mr Howe suggested that the use of the expression, “the facts of each case”
in para 59 of the court’s judgment betokened a conclusion that the individual
transaction between the internet provider and the subscriber was to be considered
without reference to broader considerations that might motivate the applicant for
disclosure of the information. I do not accept that submission. Of course the facts
of each case must be considered. But this does not mean that they should be placed
in a hermetically sealed compartment so that their possible impact on issues going
well beyond their significance to the person whose personal data are sought is
ignored. There is no logical or sensible reason to disregard the wider context in
which the RFU wants to have access to this information. Their desire to prevent
the future sale of tickets for international matches at inflated prices is intimately
connected to the application for the Norwich Pharmacal order. The ability to
demonstrate that those who contemplate such sale or purchase can be detected is a
perfectly legitimate aspiration justifying the disclosure of the information sought.
There is no coherent or rational reason that it should not feature in any assessment
of the proportionality of the granting of the order.
41. Mr Howe referred finally to the case of Goldeneye (International) Ltd v
Telefonica UK Ltd [2012] EWHC 723 (Ch). In that case Golden Eye and 13 other
claimants sought a Norwich Pharmacal order against Telefonica UK Ltd trading as
Page 14
O2, one of the six largest retail internet service providers in the UK. The object of
the claim was to obtain disclosure of the names and addresses of customers of O2
who were alleged to have committed infringements of copyright through peer-topeer file sharing.
42. At paras 118 and 119 Arnold J set out the respective rights of the claimants
and those whose personal data would be disclosed if a Norwich Pharmacal order
was made:
“The Claimants’ rights
118. The Claimants’ position can be summarised as follows. They
are owners of copyrights which have been infringed on a substantial
scale by individuals who have been engaged in … file sharing. The
only way in which they can ascertain the identity of those individuals
and seek compensation for past infringements is by (i) obtaining
disclosure of the names and addresses of the Intended Defendants,
(ii) writing letters of claim to the Intended Defendants seeking
voluntary settlements and (iii) where it is cost-effective to do so,
bringing proceedings for infringement.
The Intended Defendants’ rights
119. The Intended Defendants are not, of course, before me. With
the assistance of Consumer Focus’ submissions, however, it seems to
me that the position of the Intended Defendants can be summarised
as follows. It is likely that most of the Intended Defendants are
ordinary consumers, many of whom may be on low incomes and
without ready access to legal advice, particularly specialised legal
advice of the kind required for a claim of this nature. The grant of
the order sought will invade their privacy and impinge upon their
data protection rights. Furthermore, it will expose them to receiving
letters of claim and may expose them to proceedings for
infringement in circumstances where they may not be guilty of
infringement, where the subject matter of the claim may cause them
embarrassment, where a proper defence to the claim would require
specialised legal advice that they may not be able to afford and
where they may not consider it cost-effective for them to defend the
claim even if they are innocent.”
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43. The situation in the Goldeneye case can be readily distinguished from the
present case. There, unwitting customers of O2 might find themselves identified as
possible downloaders of pornography and demands made of them for payment of
the service. As was pointed out during argument on this appeal, some customers
who had not engaged at all in downloading the material might feel constrained to
make the payment demanded in order to avoid the embarrassment of being accused
of that activity. In the present case, by contrast, all that is sought is the names and
addresses of persons who have sold or bought tickets for international rugby
matches in contravention of unambiguously stated rules that they should not do so.
44. Mr Howe commended the test adumbrated by Arnold J in para 117 of his
judgment as follows:
“In my judgment the correct approach to considering proportionality
can be summarised in the following propositions. First, the
Claimants’ copyrights are property rights protected by Article 1 of
the First Protocol to the ECHR and intellectual property rights within
Article 17(2) of the Charter. Secondly, the right to privacy under
Article 8(1) ECHR/Article 7 of the Charter and the right to the
protection of personal data under Article 8 of the Charter are
engaged by the present claim. Thirdly, the Claimants’ copyrights are
‘rights of others’ within Article 8(2) ECHR/Article 52(1) of the
Charter. Fourthly, the approach laid down by Lord Steyn where both
Article 8 and Article 10 ECHR rights are involved in In re S [2004]
UKHL 47, [2005] 1 AC 593 para 17 is also applicable where a
balance falls to be struck between Article 1 of the First
Protocol/Article 17(2) of the Charter on the one hand and Article 8
ECHR/Article 7 of the Charter and Article 8 of the Charter on the
other hand. That approach is as follows: (i) neither Article as such
has precedence over the other; (ii) where the values under the two
Articles are in conflict, an intense focus on the comparative
importance of the specific rights being claimed in the individual case
is necessary; (iii) the justifications for interfering with or restricting
each right must be taken into account; (iv) finally, the proportionality
test – or ‘ultimate balancing test’ – must be applied to each.”
45. I have no difficulty in accepting this as a correct statement of the approach
to the question of proportionality in the Norwich Pharmacal context. But I do not
accept that its application to the present appeal leads to the conclusion that the
order should not be granted. An “intense focus” on the rights being claimed in
individual cases does not lead to the conclusion that the individuals who will be
affected by the grant of the order will have been unfairly or oppressively treated.
On the contrary, all that will be revealed is the identity of those who have,
apparently, engaged in the sale and purchase of tickets in stark breach of the terms
Page 16
on which those tickets have been supplied by the RFU. The entirely worthy motive
of the RFU in seeking to maintain the price of tickets at a reasonable level not only
promotes the sport of rugby, it is in the interests of all those members of the public
who wish to avail of the chance to attend international matches. The only possible
outcome of the weighing exercise in this case, in my view, is in favour of the grant
of the order sought.
46. In suggesting that it would “generally be proportionate” to make an order
where it had been shown that there was arguable wrongdoing and there was no
other means of discovering the identity of the arguable wrongdoers, Longmore LJ
might be said to have somewhat overstated the position, although it is to be noted
that this was not expressed as a presumption in favour of the grant of an order. The
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 some limited instances, displace the interests of
the applicant for the disclosure of the information even where there is no
immediately feasible alternative way in which the necessary information can be
obtained. But, in the present case, the impact that can reasonably be apprehended
on the individuals whose personal data are sought is simply not of the type that
could possibly offset the interests of the RFU in obtaining that information. I
would therefore dismiss the appeal.
Consent
47. Lord Pannick QC, who appeared for the RFU, deployed, as an alternative to
the claim that the grant of the Norwich Pharmacal order was proportionate, the
argument that the persons whose personal data were sought had given their consent
to the disclosure of that information. In light of my conclusion as to the
proportionality of the order, it is not strictly necessary to deal with this argument.
It can, in any event, be disposed of briefly. Article 7(a) of the Directive provides
that member states must provide that personal data may be processed if the data
subject has given his unambiguous consent to its disclosure. Article 2(h) defines
‘consent’ for this purpose. It provides that “‘the data subject’s consent’ shall mean
any freely given, specific and informed indication of his wishes by which the data
subject signifies his agreement to personal data relating to him being processed”.
48. As part of the registration process a visitor to the Viagogo website was
informed that use of the website constituted acceptance of the terms of the privacy
policy referred to in para 5 above. A condition of registration was agreement to the
Viagogo terms and conditions and the privacy policy. The privacy policy contains
the following statement:
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Page 18
“You should be aware that in addition to the circumstances described
above, Viagogo may disclose your financial or personal information
if required to do so by law, court order, as requested by other
government or law enforcement authority, or in the good faith belief
that disclosure is otherwise necessary or advisable including, without
limitation, to protect the rights or properties of Viagogo or its
affiliated companies or when we have reason to believe that
disclosing the information is necessary to identify, contact or bring
legal action against someone who may be causing interference with
our rights or properties, whether intentionally or otherwise, or when
anyone else could be harmed by such activities.”
49. Lord Pannick suggested that this constituted an unambiguous consent
sufficient to satisfy the requirements of articles 2(h) and 7(a). Even if the
disclosure was disproportionate, therefore, by accepting Viagogo’s terms and
conditions, the data subject had given unequivocal consent to the disclosure of his
or her personal data.
50. The short – but, in my view, conclusive – answer to this argument is that
such consent as may have been given by acceptance of the terms and conditions
did not include an agreement to disclose personal data other than when it was
proportionate to do so. Viagogo could not be required by law to disclose personal
data other than when it was concluded that it was proportionate to require it to do
so. A court order requiring its disclosure could not be made without the necessary
underpinning of proportionality. It follows that the person who registered on the
Viagogo website consented – at most – to the disclosure of his or her personal data
when it was established that this was a proportionate response to a request for its
release. In my view, therefore, RFU’s alternative argument based on consent must
be rejected. It should be made clear, however, that the argument based on consent
was, in the manner of its presentation, very much subsidiary to the principal
submissions on the proportionality of the order, and my conclusions on it are, on
that account, entirely incidental to the primary findings on the appeal.
