Racing Partnership Limited v Done Brothers

Can information that derives from a public sports event be subject to an obligation of confidentiality to the event organiser?

The key takeaway

Although the information was visible to potentially thousands of people, the Court found that the information was confidential because there was a substantial commercial value in the information and a company/person had the ability to control its dissemination via exclusive channels so as to exploit that value.

The background

The Racing Partnership Ltd (TRP) produced live betting and horse racing data collated at racecourses under agreements with the course owners and sold it to off-course bookmakers. Arena Leisure Ltd (Arena) was the owner of six racecourses (the Arena Racecourses). 

Until 1 January 2017, Sports Information Services Ltd (SIS) had the right, under an agreement with Arena, to collate and distribute race-day data (such as changes in jockeys and state of the course) and Betting Shows (ie Betting Prices when transmitted off-course) from the Arena Racecourses. 

After January 2017, SIS continued to provide information comprising of race-day data to two major off-course bookmakers, Ladbrokes Coral and Betfred. SIS obtained that information from the Tote (Successor Company) Ltd (the Tote). The Tote had permission to collect race-day data, but this was only for a pool betting service.

TRP and Arena claimed against SIS for: infringement of copyright; infringement of database right; breach of contract; and breach of confidence. 

The decision

The judge held that the race-day data had the necessary quality of confidence. Despite the fact that the information was publically available, the ability to collect it and distribute it could be and was limited by Arena. 

The Court took into account the commercial value of the information and relied on the decision in Douglas v Hello! Ltd (No.3) [2008]. The Court was satisfied that the information had been imparted with an obligation of confidence and that SIS did or should have known that confidentiality attached to it and that there was an unauthorised use of this information. 

Why is this important?

According to the Court, what mattered was whether the collection and dissemination of the information could be controlled. If so, an obligation of confidence could be imposed and the commercial value of the disclosure of that information protected.

This confirms that event organisers have the ability to protect the value of their information against unauthorised distribution. 

Any practical tips?

If you are operating restricted access events and/or have information that you license or distribute, you should have contractual terms to control how your information may be used and confirm that such information is confidential and that further disclosure or use is not permitted.