Supreme Court upholds Norwich Pharmacal order in face of competing data protection rights

A recent Supreme Court decision clarifies the approach the courts should take in deciding whether to grant Norwich Pharmacal relief in the face of competing data protection rights, and in particular in determining whether the grant of the order satisfies the requirement of proportionality: Rugby Football Union v Consolidation Information Systems Ltd (formerly Viagogo Ltd) (in liquidation) [2012] UKSC 55.

Here the RFU obtained a Norwich Pharmacal order against the operator of a ticketing website, Viagogo. The order required Viagogo to disclose the identities of individuals that had used the website to sell and purchase tickets to rugby matches at Twickenham at inflated prices, in breach of the terms and conditions on which the RFU made the tickets available. On appeal, Viagogo argued that to order disclosure would constitute a disproportionate interference with the rights of the individuals concerned under article 8 of the EU Charter of Fundamental Rights which guarantees the protection of personal data.

The appeal was dismissed by both the Court of Appeal and the Supreme Court. The Supreme Court reiterated the flexible and discretionary nature of the remedy, emphasising that a Norwich Pharmacal order will be made only where it is necessary and proportionate in all the circumstances, and this involves a careful weighing of all relevant factors. Many of those factors are also relevant to an assessment of whether disclosure is proportionate in the context of article 8, which requires weighing the benefit of the information sought against the impact disclosure would have on the individual concerned.

The court rejected the applicant's argument that such benefit had to be looked at narrowly, considering only the particular benefit of the information relating to a particular individual. It was legitimate to take into account the wider context, such as the RFU's aim of allocating tickets in a manner that would enhance the popularity of the sport.

These issues will be explored in a forthcoming book by Simon Bushell and Gary Milner-Moore  to be published by Bloomsbury Professional, which is entitled Disclosure of Information: Norwich Pharmacal and Related Principles. Our Intellectual Property group has also issued an e-bulletin on this decision; click here to view the IP newsflash.