Breach of Confidence: Raceday Data is not confidential information
Can a duty of confidence be applied to live sports data between its creation and its broadcast when the information is available in real time?
The key takeawayWhen assessing whether a duty of confidence could apply to the race data, the majority of the Court of Appeal held that no duty of confidence was imparted in these circumstances, given that the races were broadcast live and data known.
However, given the opposing views in the judgment and the decisions were reached on a majority basis, the issues may be considered by the Supreme Court.
In respect of the economic tort, a reasonable person would not consider that the circumstances gave rise to confidence obligations. The judgement also found (again by a majority) that knowledge by the parties was not required to prove unlawful means conspiracy.
The background
The Racing Partnership Ltd (TRP) supplied live betting and raceday data from racecourses (including weather conditions, withdrawal of horses or riders, start and finish times and the results) to off-course bookmakers. This data is important to off-course bookmakers to ensure that they have access to immediate, accurate data allowing them to take bets until the start of the race and to accurately reflect the prices offered by the on-course bookmakers.
Arena Leisure Ltd (C2), owned six courses and, in 2016, entered into a contract with TRP to collect data in respect of their racecourses from 2017. Sports Information Services (SIS) had previously held the right to collect and distribute the data from A2’s racecourses prior to expiry of its contract on 31 December 2016. However, SIS continued to provide an unofficial feed of raceday data using data collected by the Tote (the pool betting services provided at racecourses).
TRP brought a claim alleging that SIS had supplied data to the Betfred Group and the Ladbrokes Coral Group and that the three companies (together with the Tote) had conspired to cause injury to TRP by unlawful means. The High Court held that the information supplied by SIS was confidential to TRP and A2 – it had the necessary quality of confidence and was given in circumstances importing confidentiality obligations. SIS therefore acted in equitable breach of confidence by supplying the information to off-course bookmakers. However, TRP’s unlawful conspiracy claim was rejected as TRP had failed to demonstrate knowledge between SIS and at least one other conspirator that the means was unlawful.
SIS appealed against the finding that it was liable for misuse of TRP’s confidential information and TRP cross-appealed against the dismissal of its unlawful means conspiracy against SIS.
In majority decisions, the Court of Appeal allowed both the appeal and the cross-appeal, with each judge providing an alternative basis for their decision.
TRP’s claim for misuse of confidential information by SIS was dismissed. Lewison LJ and Phillips LJ concluded that no duty of confidence was imparted in these circumstances given that the races were broadcast live, meaning data such as the finish, the winner and non-riders would be known in real-time. The question that had to be answered was whether a reasonable person would expect to understand whether SIS should have understood that the Tote was bound by confidence obligations. As SIS did not receive this information under an obligation of confidence, no equitable duty was owed.
Arnold LJ disagreed; he considered that there was misuse of confidential information, noting that the doctrine of misuse of confidential information is all about the control of information (ie accessibility, not secrecy) (referring to Douglas v Hello!) and that it is a species of unfair competition (referring to the Paris Convention, TRIPS and the Trade Secrets Directive).
SIS was however found liable for conspiracy to injure by unlawful means. An unlawful means conspiracy occurs where two or more parties acted together unlawfully with the intention of doing damage to a third party and doing so. On majority, the Court of Appeal found that knowledge of the unlawfulness of the means employed was not required. Arnold LJ concluded (and Phillips LJ agreed) that the High Court was incorrect to find that SIS’s acts, taking pricing data from betting exchange websites, did not amount to unlawful means as some of the Tote’s data came to SIS in breach of its confidence obligations to TRP, and some came from the betting exchanges, in breach of their terms and conditions.
On this issue, Lewison LJ dissented; he found that knowledge is an ingredient of the tort of intention to injure by unlawful means, and of conspiracy to commit that tort. He also concluded that SIS did not commit the tort as the breaches of the exchange terms were not the relevant unlawful means.
First, a word of caution – given the various opposing views in the judgment and the fact that the decisions were reached on a majority basis, the dispute might well be considered by the Supreme Court, which could lead to a different outcome again.
In the meantime, it should be remembered that a contract is not the totality of the parties’ relationships with one another. There are equitable rights (eg obligations of confidence) and tortious duties (eg economic torts) that may also be relevant, and the scope of those duties may change with differing circumstances.
Practical tips
Companies dealing with commercial data (eg financial/market data, advertising metrics, sports data, etc) should review and vet their data/information sources/feeds, ensure that their sources/suppliers have the necessary rights to supply the data (backed by appropriate warranties/indemnities), that usage is within the scope of licences/rights granted and that any onward licensing/commercial arrangements are “back to backed” and have suitable restrictions and protections in place.