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High Court Rules on Breach of Confidence for Dissemination of Data in Horse Racing

The Case (1) RACING PARTNERSHIP LTD (2) ARENA LEISURE LTD (3) ARENA RACING CORP LTD v SPORTS INFORMATION SERVICES LTD (2020) was brought against Sports Information Services Limited, who had an exclusive contractual right to collect, analyse and sell information to off-site bookmakers for the calculation of various betting prices.

SIS were made the subject of the claim after they were seen to be continuing to operate in the market after the expiry of their contract with Arena Leisure Limited.

The Claim against SIS proceeded to trial on the grounds of breaches of copyright, data rights, contract and confidence. It was pleaded that race day data collated by the company from the Tote, and supplied to off-course bookmakers in relation to races on certain courses was confidential because it was controlled by the course owner, and the company had imparted the information in breach of an equitable obligation of confidence. TRP contended that the Race day data which SIS obtained from the Tote constituted information that was confidential to one or more of the claimants and that by obtaining such data and supplying it to Betfred and Ladbrokes, SIS had acted in breach of confidence.

SIS defended on the grounds that it had not acted in breach of confidence as the Race day data was public property and therefore public knowledge, and that the information itself must have the necessary quality of confidence about it, and have been communicated in circumstances importing an obligation of confidence, or have been an unauthorised use of the information to the detriment of the party communicating it.

Lord Justice Arnold concluded that each type of information in the key race day triggers was, during the relevant time frame, confidential information. Moreover, even if there was any doubt about any of the individual types of information, a compilation of such information was certainly confidential to Arena and TRP. Within the judgment reference was made to Mr Justice Megarry stating:-

"It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would realise that upon reasonable grounds the information was being given to him in confidence, then this would suffice to impose on him the equitable obligation of confidence."

He also considered the words of Mr Justice Arnold in Primary Group (UK) Ltd and others v The Royal Bank of Scotland Plc and anther [2014] EWHC 1082 (Ch), [2014] RPC 26, [2014] 2 All ER (Comm) 1121 at [213] in that:-

"The reasonable person who has notice that the information he has received or acquired is confidential is bound by an equitable obligation of confidence precisely because he has such notice."

The Test

It seems therefore that the yardstick for judging whether or not a document is "obviously confidential" is the reasonable person standing in the position of the recipient.

The question is not, what is the correct legal analysis?, but rather, what would a reasonable person be expected to understand?

Applied to the facts in this case, the test actually became that SIS should have realised that the Tote was bound by a confidence obligation even though there was no contractual restriction on its ability to disseminate information that it had collected and compiled itself?

Conclusion

Although this case is not easy to follow because of the conflicting issues in the two appeals, it is important because it resolves difficult issues regarding the laws of confidence.

In this case, only 'some' of the data came from the Tote in breach of an obligation of confidence to the claimants. Other information came from the exchanges, in breach of their contractual terms and conditions. But as both resulted in loss to the Claimants because it was competing to supply the same information to the same customers, the Judge accepted that the breach of confidence issue satisfied the test of instrumentality. Even though Tote had the right to disclose data to SIS, the Court found that SIS should have appreciated the commercial sensitivity and value of the data. As such, a reasonable person in SIS' position should have known that the information was subject to an obligation of confidence, disclosure of which would be unauthorised. Accordingly, SIS was held liable for breach of confidence.

The case will I'm sure serve as a stark warning to any businesses operating in markets with data sharing agreements, that it is vital to thoroughly investigate the contractual or statutory disclosure rights both during and following the expiry of the contract.

If you have any queries or concerns on any of the issues raised in this article please contact Lisa Atkinson at Forbes Solicitors on 01254 222 448 or email at lisa.atkinson@forbessolicitors.co.uk.

For a free initial consultation, or to receive any further information and guidance relating to the mishandling of data which may give rise to a possible civil claim, please contact a member of our Data Breach Claims Team on 01254 872111. Alternatively send any questions through to Forbes Solicitors via our online Contact Form.

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