Ticket exchange website ordered to provide RFU with personal data of sellers

The Court rejected claims made by Viagogo Ltd that it would have violated users' rights to the protection of their personal data and privacy to order it to hand over the information, which included names, addresses and credit card details. However, the Court ruled that it was both necessary and proportionate for Viagogo to be forced to hand over the information. The Court rejected an appeal by Viagogo over a High Court ruling on the case in which that court said the operator had to hand the RFU the data.

"In the absence of any plausible suggestion as to how the RFU could obtain information as to the identity of those selling tickets for more than their face value, it seems to me that a Norwich Pharmacal order is, indeed, necessary and I would not disagree with the [High Court] judge under this head," the Court of Appeal ruled.

"Once it is established that there is arguable wrongdoing by unidentified individuals and that there is no realistic way of discovering the arguable wrong doers other than a Norwich Pharmacal order, it will generally be proportionate to make such an order revealing the identity of those arguable wrongdoers. There can be no reasonable expectation of privacy in respect of data which reveal 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 requirement that Viagogo disclose a limited amount of personal data in this case is proportionate because there is no other way in which arguable wrongdoing can be exposed. In this case, as in many other Norwich Pharmacal cases, necessity and proportionality may go hand in hand. The terms of the order must, of course, be proportionate but Viagogo have never suggested that some more limited form of order would be appropriate," it ruled.

In the UK courts can issue a Norwich Pharmacal Order to force the release of information.

The Court rejected claims from Viagogo, which charges a fee for transactions made on its site, that the RFU's request for information was not necessary.

The RFU "had the remedy in their own hands because, instead of issuing tickets to Members Clubs and sponsors, they could issue them only to named individual applicants and require them to present personal identification in the form of a passport or other document when they entered the ground," Viagogo had unsuccessfully argued. The Court said that such a process "would be wholly inimical to the way in which the RFU wishes to distribute tickets for important matches and it can hardly be appropriate for the owner of a website to require the RFU to make such fundamental alteration to its ticketing operations".

The Court of Appeal said that there was "ample evidence" that users of Viagogo's website had been in breach of RFU's "arguable contracts" and that purchasers had trespassed at Twickenham stadium as a result.

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 constitutes trespass because its permission to enter the ground automatically expires when there has been a breach of the ticket terms and conditions.

The Court said it was "arguable" that the sellers of the tickets on Viagogo's site could be found "jointly liable" for buyers' trespassing. It said that it didn't matter whether the RFU's main intention was to use sellers' information Viagogo has been ordered to provide it with to identify "transferees" – members clubs or sponsors that the RFU distribute tickets to originally. Viagogo had claimed that the RFU's assertion of wrongdoing by sellers on its site had been "artificial" because its "real object" was to identify transferees.

"I do not regard the claims against such transferees as 'artificial'; even if it turns out in the end that claims for damages for breach of contract and incitement to trespass are (for whatever reason) likely to fail and are not pursued, the RFU may still have good prospects of obtaining injunctive relief for the future or other legitimate reasons for exposing the conduct of the intermediate transferees to the light of day. That would be redress adequate for the operation of the Norwich Pharmacal principle which does not, in any event, have to be redress in the form of legal proceedings," the Court ruled.

The High Court previously ruled that the release of information does not breach Viagogo's privacy policy.

The information available to the RFU will concern people who advertised and/or sold tickets on Viagogo for England's Six Nations home matches against Italy, France and Scotland earlier this year or the 2010 autumn international fixtures at Twickenham.

In addition to handing over the personal data of users that advertised and sold those tickets Viagogo will also have to hand over information identifying the individual tickets that were sold by block, row, seat number and price.