The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in breach of this condition. The Court considered whether it was appropriate to protect the identities of those who had advertised tickets for sale. The Union, appealing, argued 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.
Held: The Union’s appeal failed, and disclosure was not ordered. The request was disproportionate as between the applicants and the intended targets.
As to the argument that in accepting the respondent’s web-site terms, they had consented to such disclosure: ‘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.’
Lord Kerr of Tonaghmore discussed the Charter: ‘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.’
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’ . . Moreover, article 6(1) of TEU requires that the Charter must be interpreted with ‘due regard’ to the explanations that it contains.’
Lord Phillips, Lady Hale, Lord Kerr, Lord Clarke, Lord Reed
[2012] UKSC 55, [2012] 1 WLR 3333, [2012] WLR(D) 342, UKSC 2012/0030, [2013] 1 CMLR 56, [2013] HRLR 8, [2013] 1 All ER 928
Bailii, Bailii Summary, SC Sumary, SC, WLRD
Directive 95/46/EC 1(1) 6 7, Data Protection Act 1998, Charter of Fundamental Rights of the European Union
England and Wales
Citing:
At First Instance – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Appeal from – Rugby Football Union v Viagogo Ltd CA 20-Dec-2011
The Union complained that the defendant operators of a web-site had permitted the sale of its tickets at far above their face value. The Court considerer whether it was proper to make a Norwich Pharmacal order which would entail the disclosure of . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Koo Golden East Mongolia v Bank of Nova Scotia and others CA 19-Dec-2007
When making an order for the production of documents by a third party to an action, Sir Anthony Clarke MR said that it is necessary to consider all the circumstances in the light of the fact that Norwich Pharmacal relief is a flexible remedy. . .
Cited – Totalise Plc v Motley Fool Ltd and Another QBD 15-Mar-2001
A web site operator who declined responsibility for the moderation of a chat room on the site, but did take steps to remove a poster making defamatory remarks, could not rely upon the Act to resist disclosure of the identity of the author. The Act . .
Cited – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners HL 1974
An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying . .
Cited – X Ltd v Morgan-Grampian (Publishers) Ltd HL 1990
In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a . .
Cited – The President of the State of Equatorial Guinea and Another v Bank of Scotland International PC 27-Feb-2006
(Guernsey) Lord Bingham said: ‘Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Clift v Clarke QBD 18-Feb-2011
The claimant sought disclosure of identities of posters to the defendant’s web-site.
Held: ‘In my view, the postings are clearly one or two-liners, in effect posted anonymously by random members of the public who do not purport, either by . .
Cited – Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU ECJ 18-Jul-2007
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 . .
Cited – Zagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Cited – Bonnier Audio AB v Perfect Communication Sweden AB ECJ 19-Apr-2012
ECJ The applicants, publishers with exclusive rights to reproduce etc, certain audio books, claimed that their exclusive rights had been infringed by the public distribution of the works without their consent by . .
Cited by:
Cited – Davis and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others Admn 17-Jul-2015
The applicants said that section 1 of the 2014 Act was unlawful in that it went against decisions of the European Court.
Held: Section 1 was indeed inconsistent with European Union Law. Section 1, of the Act should be disapplied: (1) insofar . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – Mircom International Content Management and Consulting Ltd and Others v Virgin Media Ltd and Another ChD 16-Jul-2019
The claimants, producers of pornographic films, sought disclosure by the defendant internet service provider of certain internet protocol addresses, wishing to pursue those it said had wrongfully downloaded their films. The court was asked first . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Information, Contract, Human Rights, European
Leading Case
Updated: 01 November 2021; Ref: scu.465937