Rights in sports data

The judgment of Zacaroli J handed down in The Racing Partnership Ltd & Ors v Done Brothers (Cash Betting) Ltd & Ors [2019] EWHC 1156 is of significant interest and general importance principally for two reasons.

First, because it found that information emanating from a sports event can in certain circumstances be considered to be subject to an obligation of confidentiality owed to the event organiser – even when that information is being almost immediately made public. If upheld, this might allow for what might be seen as a broad sports data right.

Second, because it developed the law in the hitherto somewhat uncertain tort of unlawful means conspiracy.

Background

The case relates to the creation and provision of horseracing betting odds (known as “betting shows”) and other data relating to horseraces (known as “raceday data”) at the racecourses of the Second Claimant, Arena Leisure Limited, by the Defendant (“SIS”) to various bookmakers from January to July 2017. The bookmakers in question were originally co-defendants of SIS, but settled the claim well before trial, leaving SIS the sole remaining defendant. The right to collect these data at these courses had ostensibly been exclusively granted to the First Claimant, The Racing Partnership Limited (“TRP”).

In a factually and legally complex case, the Claimants advanced three categories of claim against SIS at trial:

1. a claim in breach of confidence on the basis that the raceday data emanating from the courses was their confidential information which was being used by SIS without authorisation;
2. a claim in the economic tort of conspiracy by unlawful means on the basis that SIS conspired with bookmakers and the Tote to use unlawful means to injure the Claimants; and
3. intellectual property claims, being infringement of copyright and infringement of a database right on the basis that SIS were copying or otherwise unlawfully making use of TRP’s own betting shows. SIS counterclaimed for declarations that its creation of betting shows did not infringe TRP’s rights in this way.

The claim in breach of confidence was partly successful. The other claims failed, while SIS’s counterclaim succeeded. The judgment contains a number of potentially important rulings in relation to sports data and more generally. We consider each in turn.

Breach of confidence claim

As noted above, as well as providing betting shows to bookmakers, SIS also provided raceday data. This included a variety of information concerning the horseraces in question such as non-runners, late withdrawals and the time of the off, that is the start of each race.

SIS obtained this information from the Tote (Successor Company) Limited (“T(SC)L”). T(SC)L (which was and is owned by Done Brothers (Cash Betting) Limited, which in turn operates Betfred bookmakers) ran the Tote, the (then) exclusive horserace pool betting service in Great Britain, having taken over the operation from the Horserace Totalisator Board when it was effectively privatised in 2010 (pool betting is where winning punters simply share the total amount staked on a race – after deduction of margin - in proportion to the amount bet, in contrast with fixed odds betting, where the punter’s winnings depend on the individual odds of the horse bet on).

The Tote had long operated on racecourses in Great Britain, including those in question in this action. In doing so, it collected and disseminated the raceday data around the country (and indeed the world) for the purposes of its pool betting service. From 1 January 2017, it made the raceday data it collected available to SIS so that SIS could include this in its package for bookmakers, for the purposes of their fixed odds betting services.

TRP claimed the raceday data was subject to an obligation of confidentiality owed to it and that the use of the raceday data by SIS constituted a breach of that obligation of confidentiality.

The requirements for a claim in breach of confidence are those set out in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47: (1) The information must have the necessary quality of confidence; (2) The information must have been imparted in circumstances importing an obligation of confidence; and (3) There must be an unauthorised use by the confidant to the detriment of the rights holder.

But the more particularly relevant authority was that of Douglas & Ors v. Hello! Ltd & Ors [2007] UKHL 21, the well-known case concerning photos of the wedding in 2000 of Catherine Zeta Jones and Michael Douglas. The couple had entered into an agreement for pictures of the occasion to appear exclusively in OK! magazine. In the event, an interloper had stolen in and surreptitiously taken pictures which appeared in the rival Hello! magazine.

The couple sued and when the case ended up in the House of Lords, Lord Hoffman giving the leading judgment held that the pictures of the event were subject to an obligation of confidentiality (despite the fact that photos of the event were to be published in OK! and that the pictures in Hello! thus constituted a breach of confidence. The basis on which Lord Hoffman held that the pictures were subject to an obligation of confidentiality was because it was information (a) of commercial value and (b) over which the couple had sufficient control to enable them to impose an obligation of confidence.

Zacaroli J applied that reasoning to the raceday data holding that (i) the raceday data had the necessary quality of confidence, because TRP had the ability to impose restrictions on the use of raceday data and it had commercial value; and (ii) a reasonable person in SIS’s position would have appreciated that T(SC)L acquired the raceday data in circumstances importing the obligation of confidentiality, which therefore precluded its use for fixed-odds betting. On these bases, the judge held that SIS had acted in breach of confidence in receiving and disseminating the raceday data.

Commentary

This is a highly controversial finding. It is true that since the House of Lords decision in Douglas v Hello!, commentators have speculated as to whether the reasoning there allowed for a form of hypothecated right, whereby if a person can initially control some information, they can continue to dictate the extent to which it can be used after it is released into the public, on the basis of the law of confidentiality.

However, this is the first case where such an extension has been applied to sports data. One difficulty is whether it can really be said that the information in question has the necessary quality of confidentiality. This is after all information which not only was completely available to all the many people who attended at the racecourses in question but was also significantly available to those at home given that all the races were broadcast live on the ‘At The Races’ television channel. It is unprecedented for information which is immediately so widely disseminated to be held to have the necessary quality of confidentiality.

The proposition can perhaps be best tested in respect of the information comprising the start of the race, the off, an important component of raceday data. Can it really sensibly be said that the moment of the start of a sporting event held in public and broadcast live on television constitutes confidential information?

The judge’s answer to that would be that the information is confidential only momentarily. The commercial value lies not so much in the information itself but in its expeditious provision from the racecourses to the betting shops. It may be that very quickly the information has become so circulated that it is in effect in the public domain and all confidentiality is lost. But until that moment, the judge would say it remains protectable in the law of confidentiality.

As regards the potential importance of this ruling (if it is upheld), it is not unusual for agents to be placed within sports and other events and disseminate data or even stream video from it for a variety of purposes. It may be that such activity could in some circumstances be curtailed legally by using existing well established legal claims, for example if such activity constituted a breach of the terms and conditions of attendance (although such claims are not without their potential problems).

However, in such circumstances, the confidentiality ruling here may nonetheless be used by event holders as an additional basis to seek to restrain the use of such data. In other circumstances where the data collection was not undertaken by an attendee (for example where there was the use of a drone), the confidentiality ruling may provide a much better legal way forward to protecting this type of information than existed previously.

One important question is the length of time in which the confidentiality envisaged by the judge persists. After all, it is inherent in cases like this that there is information which is passing from supposedly private control into the public at large. At some point the confidentiality must surely come to an end. There cannot for example be sensibly said to be any confidentiality in yesterday’s football results.

The answer to this - adopting the logic of the judgment - is probably that the confidentiality remains while there is additional commercial value in the information emanating from the privileged position of the source, that is the agent who attends an event or perhaps the drone that flies above it, over and above simply obtaining the information from public sources when it has been publicised in the normal way. However, what that means in other cases may prove to be highly problematic.

The claim in unlawful means conspiracy

The cause of action of unlawful means conspiracy is one of the well-established economic torts. However, despite having been subject to considerable judicial consideration in recent years, the parameters of the tort remain extremely uncertain in a number of regards, some of which were addressed in this judgment.

The commonly accepted elements to establish the tort of unlawful means conspiracy are: (1) a combination or agreement between two or more persons; (2) to take action which is unlawful; (3) with the intention (but not necessarily the predominant purpose) of causing damage to the claimant; and (4) the claimant suffers damage as a result (see for example, Kuwait Oil Tanker Co SAK v Al-Bader (No.3) [2000] 2 All ER (Comm) 271 (“Kuwait Oil”).

In this case, the Claimants advanced a range of alleged unlawful means on the part of SIS to found this part of their claim. These included the alleged breach of confidence in respect of the use of the raceday data (see above), the alleged intellectual property breach (see below) and also that SIS was in breach of contract with two betting exchanges by using their data to prepare its betting shows in breach of their terms and conditions. In respect of the latter ground, it should be noted that the exchanges themselves brought no claims against SIS and the Claimants instead sought to use this alleged breach of a contract (to which they were not a party) to found a claim in unlawful means conspiracy.

Zacaroli J made a number of important rulings in respect of the unlawful means conspiracy claim.

Firstly, he held that any breach of the betting exchanges’ terms and conditions by SIS did not constitute unlawful means for the purposes of the tort because any such breach was not directed at the Claimants and nor was it the “instrumentality of the harm caused to them” as he stated was required.

Secondly, another key question was whether it was a requirement for the tort that the conspirators had knowledge that the conduct in question was unlawful and if so whether more than one conspirator had to have such knowledge. SIS argued that this was a requirement, the Claimants asserted that it was not. On this issue, the previous cases had adopted varying and contradictory positions which we briefly summarise below.

In British Industrial Plastics v Ferguson [1938] 4 All ER 504, where there were parallel claims for inducing a breach of contract and conspiracy to injure by unlawful means, the Court of Appeal held that it is an essential requirement in the tort of conspiracy that the defendant knew of the unlawfulness of the conduct. By contrast, in Belmont Finance Corporation v Williams Furniture (No.2) [1980] 1 ALL ER 393, the Court of Appeal came to the opposite conclusion, holding that ignorance of the law was no defence in the tort of conspiracy.

Both decisions were referred to by the Court of Appeal in Meretz Investments NV v ACP Ltd [2008] Ch 244, where it was concluded that it is a defence to an action for conspiracy to injure by unlawful means (a different but related tort) if the defendant acted in the belief that he had a lawful right to act as he did.

Subsequently, the issue has been considered in Digicel (St Lucia) Limited v Cable & Wireless Plc [2010] EWHC 774 (Ch), First Subsea Ltd v Baltec Ltd [2014] EWHC 866 (Ch) and, most recently, Stobart Group v Tinkler [2019] EWHC 258 (Comm). Unpredictably, while Digicel followed Ferguson and Meretz, First Subsea preferred Belmont, as did Stobart.

Having reviewed the authorities, Zacaroli J followed Ferguson and Digicel and concluded that a party’s liability under the tort of unlawful means conspiracy, at least where (as here) the unlawful means in question consisted of breach of confidence, depended upon the defendant having knowledge (whether actual or ‘blind eye’ knowledge) and also at least one other conspirator having such knowledge.

Commentary

This case is perhaps the most clear and cogent in the recent line of authorities on the tort of unlawful means conspiracy finding importantly that:

• the form of alleged contractual breach here did not constitute unlawful means for the purposes of the tort because such a breach was not sufficiently directed at the Claimants; and
• at least where the unlawful means constitutes breach of confidence, the tort requires that at least two alleged conspirators must have knowledge that the activity in question was unlawful.

Infringement of copyright and database right

In respect of these claims, the Claimants sued essentially on the basis that in creating its betting shows for the horses in the races in question, SIS was having regard to their betting shows and thus infringing their intellectual property rights. SIS denied this, saying its betting shows were derived from sources which included the betting exchanges.

In the event, the claim turned mainly on factual questions with the Claimants being unable to persuade the court that there had been any copying of their betting shows. However, of more general application, the judge did hold that:

• no copyright can subsist in a single betting show, for example odds of 6 to 1 (it is important to note that that systematic copying of a series of betting shows may still be an intellectual property infringement); and
• neither changing one’s prevailing odds to be near but still different to another person’s odds nor leaving one’s odds unchanged when reviewing another person’s odds can constitute a breach of copyright.

CMS acted for SIS in this case. On 9 July 2019, Zacaroli J granted SIS permission to appeal the confidentiality finding, and TRP permission to appeal aspects of the conspiracy finding.

To read the judgment in full please click here.