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RFU plans tough sanctions against ticket resellers after Supreme Court dismisses privacy concerns around disclosure

A website operator must disclose the names and addresses of people who used the site to trade rugby tickets after the Supreme Court said that doing so would not be a disproportionate infringement of those individuals' privacy rights.22 Nov 2012

Viagogo Limited had claimed that the High Court and Court of Appeal had been wrong to rule that it should have to hand over the information about the ticket traders to the Rugby Football Union (RFU) in England, but its appeal was dismissed (19-page / 87KB PDF) in a unanimous finding by five Supreme Court judges.

The sports governing body obtained a Norwich Pharmacal Order from the High Court in 2011 after a judge deemed that Viagogo helped to facilitate trespassing at Twickenham stadium by allowing the trade of tickets above face value on its website.

A Norwich Pharmacal order is a request that information be disclosed about a third party. It is often used to identify people against whom someone wants to take legal action.

Tickets for England international matches with Italy, France and Scotland in 2011 and autumn international fixtures in 2010 had been sold for as much as £1,300 despite the face value price ranging between £20 and £55, the Supreme Court said. The terms and conditions on RFU tickets say that they must not be sold above face value. The RFU has argued that the use of a ticket sold for more than the face value price constituted trespass because its permission to enter the ground automatically expires when there has been a breach of the ticket terms and conditions.

In the UK, courts can issue a Norwich Pharmacal Order to force the release of information. However, Viagogo had claimed that the Court of Appeal, in its ruling, had applied the "wrong test" when considering whether the disclosure of individuals' personal data was "proportionate".

Viagogo argued that in order to determine whether it is proportionate to make a Norwich Pharmacal Order, courts should have to "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," according to the Supreme Court judgment.

The company claimed that EU and UK case law had established that the national courts, when ruling on the issue of proportionality, should give no consideration to the broader reasons why a party is seeking disclosure of the personal data. However, that argument was flatly rejected by the Supreme Court judges.

"Of course the facts of each case must be considered," Lord Kerr said. "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," the judge said.

Viagogo had argued that the Norwich Pharmacal Order was not legitimate because it would infringe individuals' privacy rights set out in the EU's Charter of Fundamental Rights of the European Union.

The EU Charter of Fundamental Rights contains a number of principles central to the operation of EU law. It specifically outlines that "everyone has the right to the protection of personal data concerning him or her" and that "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".

Lord Kerr said, though, that the ticket traders would not be "unfairly or oppressively treated" if their details were disclosed to the RFU. The reasons why the RFU sought disclosure of the information justified the release of the information, he added.

"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," Lord Kerr said. "The only possible outcome of the weighing exercise in this case, in my view, is in favour of the grant of the order sought."

"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," he added.

In a statement the RFU said that the judgment "sets an important precedent for the sporting industry that rights holders should retain the ability to control their ticketing policy and pricing".

"We are pleased that this case has finally been brought to an end," Sophie Goldschmidt, RFU chief commercial officer, said in a statement. "As a national governing body, it is our aim to grow the game of rugby. Giving genuine fans the opportunity to watch England play in front of a crowd of 82,000 at Twickenham plays a huge part in helping to achieve that."

"Selling tickets through secondary ticketing sites is against our terms and conditions and allows prices to be inflated, preventing many of our supporters from purchasing. We now plan to identify such sellers and take tough sanctions to keep our tickets off secondary ticket sites and in the right hands," she said.