Court of Appeal rules on the confidentiality of live sports data

The Court of Appeal has ruled on the confidentiality of live sports data in this case concerning “Raceday Data” and its dissemination.

Background

The Racing Partnership Limited (“TRP”) was set up by Arena Racing (“Arena”) (who own a number of British racecourses) to supply Raceday Data and coverage of races from Arena’s courses to UK and international bookmakers. Raceday Data is information specific to the racecourse on the day of the race and includes information such as the weather, the “going”, the start and finish times to races, any changes of jockeys and the results. Arena entered into a contract with TRP giving TRP the exclusive right to collect and use the Raceday Data in relation to Arena’s courses for fixed-odds betting from 1 January 2017.

Sports Information Services Ltd (“SIS”) had been the official supplier of Raceday Data from Arena’s courses prior to TRP being awarded the contract. TRP claimed the SIS had continued to share information (which was based on data collected by the Tote) with two off-course bookmakers between January 2017 and July 2017. Amongst various claims for IP infringement, TRP and Arena brought claims that SIS had breached an equitable duty of confidence and had engaged in conspiracy to injure by unlawful means.

Equitable duty of confidence

The basis of the equitable duty of confidence is that a person who has received information in confidence cannot take unfair advantage of it, and must not make use of it to the prejudice of the person who gave the information without obtaining their consent. To prove the duty has been breached all three of the below limbs must be satisfied (Coco v A N Clark (Engineers) Ltd (ChD 1968)):

• The information itself must have the necessary quality of confidence
• The information must have been imparted in circumstances importing an obligation of confidence
• There must be an unauthorised use of that information to the detriment of the rights holder

Unlawful means conspiracy

This occurs when two or more people act together unlawfully intending to damage a third party, and do damage that third party. It is sufficient for the claimant to show that injuring a third party was one of the defendant’s purposes (Llonrho plc v Fayed and others [1992] 1 AC 448).

First instance decision

The judge concluded that the Raceday Data did constitute confidential information because it was commercial valuable to off-course bookmakers for a short period after its creation (and before broadcast) and Arena could control its dissemination. He decided that all three tests for misuse of confidential information had been satisfied. However, he dismissed the claim for unlawful means conspiracy and said that there had to be knowledge on the part of SIS and at least one other conspirator that the means was unlawful. TRP had failed to prove that knowledge.

SIS appealed against the decision that it was liable for breaching the equitable duty of confidence. TRP cross-appealed against the decision that SIS was not liable for unlawful means conspiracy.

Court of Appeal

The Court of Appeal allowed both the appeal and the cross-appeal.

Breach of confidence?

The appeal confirmed that Raceday Data was confidential in nature, but there was disagreement as to exactly how it was confidential. Arnold LJ thought that individual elements of the data were confidential owing to their inaccessibility to anyone off-course in the short period before the broadcast, whereas Lewison LJ thought that it was not the individual elements that were confidential, but rather the compilation of the various pieces of data.

Although the Raceday Data was confidential, for SIS to have breached its equitable duty of confidence, the information must have been imparted in circumstances importing an obligation of confidence. The key question was whether SIS should have realised that the Tote was bound by an obligation of confidence and, although not unanimous, the majority found that SIS could not reasonably have been expected to know this (with Arnold LJ dissenting). When SIS made enquiries of the Tote, they received assurances that the Tote was legally entitled to provide the information that it did. There was no reason why SIS should have made further enquiries or reached any other conclusion. Furthermore, there was no bar on the sharing of information in the written agreement between the Tote and TRP and a reasonable person would expect to find such terms in a contract if parties had chosen to regulate their relationship in that way.

Conspiracy to injure by unlawful means?

The judges said that this was a tricky question, but the majority agreed that SIS was liable (Lewison LJ disagreed). On the issue of whether unlawful means conspiracy requires knowledge that the means was unlawful, it was decided that knowledge of the unlawfulness of the means employed was not required, even where the means was an infringement of a private right. The judges had recourse to two Court of Appeal authorities (Churchill v Walton [1967] 2 AC 224 and Belmont Finance Corp v Williams Furniture Ltd (No2) [1980] 1 All ER 383) which confirmed that although it was necessary to show that the accused had knowledge of the facts which made the act unlawful, knowledge of the law was not required.

Comment

The judges were far from unanimous on most of the key issues in this case. The judgment, therefore, is unlikely to give much certainty to those in the industry. The majority decision on the issue of confidentiality does indicate, however, that it may be reasonable to rely on contractual assurances about the legality of a source of information unless it can be shown it was not reasonable to rely on them.

The conclusion that live sports data can be confidential information between creation and broadcast could also put event organisers in a stronger position - they may be able to bring claims against distributors or users of unofficial data if that distributor/user know/ought to know that information is confidential.

As for the significance of this case in relation to conspiracy to injure by unlawful means, any future judges dealing with this tricky issue will now have an arsenal of three court of appeal judgments which have concluded that knowledge of unlawfulness is not required.