Full case report

Viagogo Ltd v (1) Paul Myles (2) Hardcash Productions (3) Channel Four Corporation

Reference [2012] EWHC 433 (Ch)
Court Chancery Division

Judge Hildyard J

Date of Judgment 23 Feb 2012


Summary

Breach of confidence – Interim Injunction – Commercial confidence – Employment contract – Express confidentiality clause – Surreptitious filming – Secret filming – Public Interest


Facts

Viagogo (C) is a company which operates Europe’s largest online ticket market-place. It sought to prevent allegedly confidential information from being broadcast by Channel 4 in a current affairs documentary “Dispatches: The Great Ticket Scandal”, produced by Hardcash Productions. The documentary sought to investigate how C’s website is used to provide a market place not only for the resale of tickets by fans to other fans, but also for the sale of tickets by primary providers such as concert promoters and allocators.

The Ds had obtained surreptitious footage through an ‘employee’ (D1) who had gained employment at C’s London headquarters as a customer service associate. D1 had signed an employment contract with C containing an express confidentiality clause.

The Ds had warned C of the allegations on 7 February, stating that the programme would be broadcast on 23 February. However, C did not send a substantive response until 20 Feb and did not initiate injunction proceedings until 21 Feb.

C stated that it did not seek to prevent C4 from airing defamatory allegations but rather, their concern was that D1, whilst employed, had gained access to commercially confidential information such as the names of specific primary ticket providers and contractual partners, their terms of business, and the quantities and sale volumes of the tickets concerned.


Issue

(1) Whether the information sought to be protected is confidential.

(2) If so, whether there is a public interest in disclosure such as to outweigh the confidentiality.


Held

(1) In respect of whether the information was confidential in nature:

  • As to information about the fact of C’s relationship with specific primary ticket providers, there was no documentary or supporting evidence that such promoters and allocators regarded the information to be confidential. They had also been notified of the allegations by the Ds and none of them had voiced objection to the programme or supported C in the proceedings. The information was unlikely to be confidential.
  • As to information regarding the details of the terms of business between C and its contractual partners, this was more likely to be confidential.

(2) However, the public interest in disclosure in all the circumstances of this case would be likely to outweigh any right to confidence.   C had previously made public statements which appeared to be misleading and inaccurate – to the effect that it was operating a ‘fan-to-fan’ ticket exchange rather than a primary market place. There was real substance in the point that the C was concealing from the public that its website is used for a substantial amount of primary ticket sales and that its aim in seeking to prevent disclosure was to prevent members of the public finding out (i) the true source of many tickets; and (ii) the extent of C’s collusion with promoters and professional sellers so that they benefit from a huge mark-up on tickets which were never available for sale at face value to the public.

(3) The Judge also took into account three further factors: (i) the latitude which the court, because it is not experienced and wary of intervening in the editorial function, allows to journalism; (ii) that the information intended to be included in the broadcast included information that was obtained covertly; and (iii) entirely pragmatic considerations that the process of editing which would be required to omit the allegedly confidential information would cut through the programme as a whole and might well so delay editing as to prevent its broadcast on the given day. It was C who was to blame for the delay in bringing the proceedings.

(4) It was further arguable that C’s real purpose for the application was to protect its reputation, not its confidences.

(5) In all the circumstances, C had not shown that it was ‘likely’ to succeed at trial, as required by s.12(3) HRA 1998.


Comment

A classic application of the well-established principles of the law of confidence, as set out in Coco v Clark [1969] RPC 41. There was found to be a clear public interest in this case of correcting misleading public statements. The claimant sought to appeal this decision in the Court of Appeal that same day, just hours before the programme was due to be broadcast. The Master of the Rolls refused permission, finding that Hildyard J in the High Court had approached the issues with great care and was more than entitled to reach the views he did.   The MR further emphasised that the claimant had not acted promptly enough in bringing the application and had not satisfied the court that it could provide a sufficient cross-undertaking in damages.


Instructing Solicitors

Lewis Silkin LLP for the Claimant; Wiggin LLP for the Defendants


Links

Judgment