The Claimant Respondent (C) was the RFU, the Defendant Appellant (D) was Consolidated Information Services, formerly Viagogo Ltd, a third party ticketing website. C had a deliberate policy of allocating tickets at low prices to grassroots organisations to develop the game and enhance its popularity.
The claim was brought in respect of tickets for matches in 2010 and 2011 which C alleged D had permitted to be anonymously advertised and sold on its website at prices above face value. C said that both sellers and purchasers had committed actionable wrongs against it, its terms and conditions stipulating that any resale of a ticket or any advertisement of a ticket for sale at above face value would constitute a breach of contract rendering the ticket null and void. D, it said, had become mixed up in the wrongdoing so that the court should make a Norwich Pharmacal order against it, requiring it to identify those advertising and selling the tickets, as well as the details of the tickets themselves.
The Judge at first instance, Tugendhat J, had decided that D was mixed up in wrongs committed against C, in that C had an arguable case in breach of contract and/ or conversion against the buyers and sellers of the tickets, and in trespass against those who entered the stadium. He held that C intended to seek redress from the wrongdoers and there was no other means of obtaining the information about them other than from Viagogo, and that it was right to grant relief in the circumstances.
D appealed, adding in the CA a new ground for resisting the order, to the effect that such an order would constitute an unnecessary and disproportionate interference with the rights of alleged wrongdoers under article 8 of the Charter of Fundamental Rights of the European Union (“Charter article 8”), which guarantees the protection of personal data. The CA dismissed D’s appeal, holding, in relation to the personal data rights of those involved in buying and selling the tickets, that such interference was proportionate in light of RFU’s legitimate objective in obtaining redress.
D’s argument before the SC was confined to the potential breach of article 8 of the Charter, which provides that
“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 …”
Its challenge was based on the claim that the CA applied the wrong test in assessing the proportionality of making the Norwich Pharmacal order.