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The Court of Appeal’s recent judgment in The Racing Partnership v Sports Information Services  EWCA Civ 1300 is essential reading for practitioners advising those who seek to exploit live sporting data as a commercial asset. Reversing the judgment of the High Court, the Court of Appeal held that Sports Information Services was liable for unlawful means conspiracy, but not for breach of confidence, in collecting and distributing key ‘raceday’ data from horseracing arenas which The Racing Partnership had an exclusive contractual right to exploit.
The Racing Partnership (“TRP”) entered into an agreement by which it had the exclusive right to collect and supply live betting and horseracing data from various racecourses to off-course UK bookmakers. As explained by the Court of Appeal, the ability to collate and distribute key betting data to bookmakers was a lucrative venture and one that TRP was willing to pay significant sums of money for.
However, TRP subsequently discovered that another company, Sports Information Services Limited (“SIS”), had been supplying similar alternative data from the same racecourses to Betfred and Ladbrokes. One of the sources for this alternative data package was raceday data obtained from an entity called the Tote which had access to the relevant racecourse arenas. TRP argued that Tote was only permitted under its contract with TRP to use any raceday data thereby collected for the limited purpose of pool betting and could not (for example) provide the data to SIS for use in fixed-odds betting.
In the High Court, Zacaroli J upheld TRP’s claim for misuse of confidential information. The Court of Appeal disagreed.
Lewison LJ was not persuaded by the High Court’s reasoning that this was commercially valuable information in respect of which TRP had sought to obtain exclusive exploitation rights. In his view, mere commercial value alone cannot suffice for confidentiality (in support of which he cited the memorable remark of Lord Walker in his minority judgment in Douglas v Hello! Ltd (No.3)  AC 1, at , that the law of confidentiality should not “afford the protection of exclusivity in a [public] spectacle”) -. The question is whether there was any restriction placed upon third parties in their dealings with the information. The fact that the key racing data was broadcast almost instantaneously to the public at large made it difficult to conclude that the data in and of itself had the necessary quality of confidentiality about it, as distinct from any particular compilation of it . Worse still, there was nothing in the contract governing Tote’s access to the racecourses which sought to limit its dealings with key racing data thereby obtained and the judge had found that Tote honestly believed there was no restriction on its ability to exploit the data -.
Phillips LJ, whilst agreeing with Lewison LJ, nevertheless focused upon the requirement that any confidential information had to be imparted to SIS in circumstances imparting an obligation of confidence. The tripartite relationship between SIS, Tote and TRP was key. There was no basis for a finding that a reasonable person in SIS’ position should have known that the information it obtained from Tote was confidential to TRP. SIS was entitled to place weight upon the contractual warranties and indemnities provided by Tote about its entitlement to provide it with racing data in the absence of “clear countervailing indications” that those assurances were false . This was not a case of ‘blind eye’ knowledge.
Arnold LJ dissented on this issue, finding that the true criterion of confidential information is not secrecy but inaccessibility and the data in this case had been sufficiently inaccessible through the scheme of restrictions put in place by the racecourse operators and TRP . Further, the High Court had been entitled to find that SIS was on notice to the fact that the data was confidential to TRP on the facts .
However, TRP fared better with its unlawful means conspiracy claim. Arnold LJ and Phillips LJ overturned the High Court’s judgment, finding that it is not necessary for an unlawful means conspiracy that the defendants know that the means are unlawful . Ignorance of the law is no defence. This approach reflects the case-law concerning the requirements of the tort of common design, where it is not necessary to show that the joint tortfeasor appreciated that the acts which he had combined to bring about amounted to a tort in law if he intended for those acts to be done (see the Supreme Court’s exposition of the law of common design in Fish & Fish Ltd v Sea Shepherd UK  AC 1229 at ).
However, Lewison LJ’s powerful dissent on the knowledge requirement – containing no less than 11 reasons why such a requirement ought to be recognised at  to  – indicates that this issue may remain fertile ground for an appeal to the Supreme Court in the future if any litigant should choose to pick up this particular gauntlet.
Combined with a finding that SIS’ actions in ‘scraping’ particular pricing data from betting exchange websites amounts to unlawful means (which SIS conceded breached of the terms and conditions of the exchanges), the majority’s determination paved the way to success for TRP.
This judgment illustrates the difficulties that sporting event organisers and live sporting data distributors will face if they seek to plug contractual gaps in protection by praying in aid of equitable breach of confidence. The Court of Appeal’s scepticism of the applicability of this cause of action in the arena of live sports betting data must also be read against the backdrop of the High Court’s rejection below of TRP’s alternative cases of breach of copyright and database rights on the facts. Contract therefore remains king. Those acquiring distribution rights will do well to undertake proper due diligence of the contractual restrictions placed by organisers and venues on other attendees, including ‘unofficial’ data distributers.
However, the news is not all bad. First, the stark differences in the reasoning of Lewison LJ and Arnold LJ in particular as to whether the live sporting data at issue was prima facie confidential information leaves distributors with room for manoeuvre where they have tighter contractual protections. Second, those with less than watertight contractual frameworks will find comfort in the success of TRP’s claim for unlawful means conspiracy. Third and finally, this judgment sits alongside the Football Dataco litigation which established that database rights will serve to prevent the copying of sporting data provided that sufficient investment has been expended in selecting and arranging the same (see the Court of Appeal’s judgment following a reference to the CJEU at  EWCA Civ 27).
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