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||Neutral Citation Number:  EWHC 433 (Ch)
IN THE HIGH COURT OF JUSTICE
||The Rolls Building
7 Rolls Buildings
London EC4A 1NL
||23rd February 2012
B e f o r e :
MR. JUSTICE HILDYARD
|| VIAGOGO LIMITED
||- and -
||(1) PAUL MYLES
(2) HARDCASH PRODUCTIONS LIMITED
(3) CHANNEL FOUR CORPORATION LIMITED
Transcribed by BEVERLEY F NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737
MR MARTIN HOWE QC and MISS L. SKINNER (instructed by Lewis Silkin LLP) appeared on behalf of the Applicant.
MISS A. PAGE QC and MISS Y. TAKATSUKI (instructed by Wiggin LLP, Cheltenham) appeared on behalf of the Respondents.
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR. JUSTICE HILDYARD:
- I will now give more elaborate reasons, which I summarised yesterday afternoon at the close of the hearing, for my decision yesterday in the late afternoon to dismiss the claimant's application for urgent injunctive relief in respect of a programme due to be transmitted today by Channel Four Television. This judgment has, of necessity, been prepared in something of a hurry. It is, to that extent, extempore, and I wish the chance in due course to revise it in the ordinary way.
- The application was made on short informal notice and first came before Floyd J on Tuesday, 21st February. Floyd J adjourned the matter to enable evidence to be filed on behalf of the defendants and for counsel for the defendants to be sufficiently briefed. He also gave directions to preserve the confidentiality of a confidential exhibit to the first witness statement of Christie Graham ("Graham 1") made on behalf of the applicant or claimant.
- When the matter came before me the claimant applied for that direction to be continued and for the hearing to take place in private pursuant to CPR 39.2(3)(a), (c) or (g). I continued Floyd J's direction, and being satisfied that it was necessary in order not to defeat the object of the hearing, but with also the concurrence, as I understood it, of the parties, made an order that the hearing be private for so long as was necessary to enable counsel to address the confidential schedule with particularity and without restraint, and that the hearing then be in public. In the event, all persons in court over the course of the day were employed by one or other of the parties.
- As canvassed with the parties, I shall in this judgment seek to avoid any reference to specific material described as "confidential" by the claimant, and adumbrated in the confidential schedule. I shall be grateful to counsel to interrupt me if it appears that I am venturing on territory which ought to be under a more specific restraint.
- The programme in respect of which the claimant seeks relief is a documentary which examines the secondary ticketing industry which has grown up around the selling and re-selling of tickets for major sporting, entertainment and music events in the United Kingdom. The documentary is being produced by the second defendant, Hardcash Productions Limited ("Hardcash"), which is an independent television production company. The documentary is being made for Channel Four Corporation Limited ("C4"). C4 intends to broadcast the documentary on its Current Affairs strand, Dispatches. The documentary has already been advertised under the title "The Great Ticket Scandal".
- The claimant is a member of a group of companies which operates online market places for live ticket events in a number of countries round the world. Established in August 2006, I understand it is now Europe's largest online ticket market place. The UK site is Viagogo. Its avowed purpose is to enable customers to buy and sell tickets for live events in a safe and secure way, free from fraud and from the predatory activities of illegitimate ticket touts. Thus, for example, one of the features of it is that Viagogo provides all buyers with what is called a "Viagogo guarantee". This is that they will receive the tickets they paid for in time for the event, or an equivalent or a higher value ticket, failing which they will receive a full refund. The seller, as I understand it, does not receive payment until the buyer has received the tickets, and Viagogo uses secure postal services to track and ensure delivery. According to Graham 1 this provides a sufficiently strong incentive for sellers to list tickets for sale without being able to provide them with results of less than 1 per cent of transactions having to be refunded each year.
- In this way, and to quote from Graham 1, the claimant's business model is said to offer consumers a number of benefits, including the following (para.18):
"(a)` Security - as explained above, the way in which Viagogo operates is a strong deterrent to any fraudulent behaviour. Consumers using Viagogo therefore have the reassurance of trading tickets in a safe and secure environment free from fraud and illegitimate street touts.
(b) Access to events - the secondary market is often the only practical opportunity for many ordinary fans to purchase tickets to some top events where limited tickets are released to the public.
(c) Price transparency - Viagogo allows consumers to compare prices and pay the going market price. The range of face values for tickets for any particular event is always stated on Viagogo's website. The purchase price for the tickets listed on Viagogo's website is not determined by Viagogo - or in reality even by the sellers; but by the market. Anyone who wishes to purchase a ticket via Viagogo's website knows both its face value and its market value. If tickets are overpriced on Viagogo's website then they will simply not sell. So it is that many tickets are sold at less than their face value, as noted in paragraph 17 above; a point which does not appear to have been appreciated by the Second Defendant in the Letter sent to Eric Baker dated 7 February 2012 (the 'Letter') (pages 4 to 11 of CG1).
(d) Privacy - Viagogo requires customers to entrust it with their personal information, and Viagogo is in turn committed to the protection of that information. Customers are guaranteed that their transactions are private and protected."
- The claimant's provision of a reliable secondary market for the resale of tickets is not in issue. As also recounted in Graham 1, the government has indicated support for the claimant's provision of such a secondary market and, indeed, I am told that on 6th February, 2011 the claimant received a letter from the Minister for Employment Relations Consumer and Postal Affairs reassuring it that the government has no intention of restricting the secondary market and commending its business model. That letter includes the following statement:
"-- the government has no problem with the principle of a secondary market for the resale of tickets. An honest and well-functioning secondary market provides valuable services for consumers, both those who have surplus tickets because their plans change, and those who are prepared to pay higher prices for last minute availability.
However, the government does deplore the activities of fraudulent ticketing websites ... We therefore welcome the practices of websites, such as Viagogo, who are offering genuine fans a forum in which to sell their tickets to other fans".
- However, it seems that the claimant's website is used to provide a market place not only for the resale of tickets by persons who have previously bought those tickets from primary ticket providers, but also for the sale of tickets by those primary providers through the Viagogo site, rather than through their own ticket outlets or box offices. Although this other use of the Viagogo website is not disputed, the overall depiction of the website does appear to be that of a fan-to-fan ticket exchange and, as I explain more fully later, the claimant appears in the recent past to have presented itself to persons such as the Competition Commission and the BBC as operating a secondary rather than a primary market place, designed for fans who wish to exchange a ticket previously purchased from a box office.
- The focus of C4's Dispatches documentary is really this other use of the Viagogo website by promoters for the supply of primary tickets for which Viagogo charges commission. The documentary seeks to investigate the extent of this use and, to quote C4's advertising material, to explain "fans queuing for hours to buy tickets guarantee turned away empty-handed while tickets for the same sold-out events appear on line shortly afterwards, sometimes at astronomical prices".
- It is important to stress that, subject to what I say below, the claimant does not itself provide or take title to the underlying ticket, whether it is primary or secondary. It provides an exchange. Nor does it determine the price of any tickets. The price is determined by the sellers or the market, depending on whether the tickets are offered at a fixed price or for bidding. The claimant, as I understand it, makes it money from the provision of that market, for which it charges commission.
- The facts which have promoted this application may be summarised as follows: The claimant became away of C4's intended documentary and of the matters which have given it such concern upon receipt of a letter on the headed notepaper of Hardcash, dated 7th February ("the 7th February letter"). The 7th February letter is marked as sent by fax, e-mail and post. It was signed by a Mr. David Henshaw, as Hardcash's managing director. Mr. Henshaw has also provided a witness statement in these proceedings, which I shall refer to as "Henshaw 1" and which is dated 21st February, 2012.
- From the 7th February letter, the claimant became aware that a person whom it had employed from about 28th November, 2011 on the terms of an employment contract signed on 13th December, 2011, had in fact also been in the employ of Hardcash and/or C4. The person concerned, who was employed by the claimant as a customer service associate, is the first defendant, Mr. Paul Myles. Mr. Myles worked at the claimant's London headquarters from about 28th November, 2011 until his resignation on 13th January, 2012.
- The 7th February letter revealed that during that time Mr. Myles had undertaken covert filming during the course of his employment with the claimant. It asserted that this had all been sanctioned at a senior level within C4 and carried out in accordance with the strict conditions of the Ofcom code and C4's written protocols. Evidence has been supplied on behalf of C4 and Hardcash as to the scrupulous observance of these conditions.
- The 7th February letter also informed the claimant that this filming, and interviews and research for the intended documentary, had revealed evidence suggesting that its own depiction of its site as a secondary ticket exchange for fan-to-fan exchanges and not a primary ticket seller, is "not entirely accurate". The 7th February letter goes on to state,
"We are aware that Viagogo have entered into agreements to act as fan-to-fan ticket exchanges with some promoters of events.
We are also aware that in some cases you have entered into agreements with promoters to offer premium tickets for initial sale, which you described to the Competition Commission in 2009 as being the best seats in the venue, or having some additional feature such as hospitality.
... Our evidence shows that your model often operates to ensure that tens of thousands of tickets are not being sold to members of public through primary outlets and then re-sold, but are initially being offered for sale to the general public through Viagogo. These tickets are received by you as allocations from promoters".
- The 7th February letter records that the first defendant was told that some of the tickets sold on the Viagogo website were indeed from ordinary fans who had bought these tickets from primary outlets such as box offices and ticket agents, but during his training he was also told,
"Even though we don't actually have any tickets, we are still selling tickets with our own accounts. For very big events, ... we are getting allocations from the promoter, so we are allowed to sell them on our website, with our internal accounts, so on these ones, the seller is basically us".
I have deleted from that - though I will want to discuss this at the end of this judgment - any reference to specific names. The 7th February letter then goes on to record that the first defendant was told not to communicate this to anyone. He was warned:
"It is really important that we never communicate to anyone, either buyer or sellers, that these accounts exist and that we do have tickets, because that is something internal that they are not supposed to know".
- The 7th February letter in addition describes how the claimant gets primary allocations. It lists recent events for which it got such allocations and it describes how the claimant, according to the first defendant, has also, in the past, acquired for re-sale on its own web-site tickets for which it has no primary allocation, by buying up tickets through an outlet through Ticketmaster, circumventing Ticketmaster's own restrictions on the number of tickets that can be purchased on one credit card by operating in teams using multiple credit cards with multiple addresses.
- In response to the 7th February letter the claimant instructed solicitors, Lewis Silkin. They, by letter to Hardcash dated 14th February, 2012, requested documentation to satisfy themselves as to compliance with the Ofcom code and C4's protocols, and also seeking disclosure of certain documents pursuant to CPR Part CPR 1-009. The letter also inquired why the claimant had not been informed earlier of the intended documentary and the matters related in the 7th February letter, and indicated that a further and comprehensive response would be sent by close of business on 17th February.
- All the allegations in the 7th February letter were denied and the claimant's rights, including any under the first defendant's employment contract which contained confidentiality provisions were reserved. In the event, Lewis Silkin did not send this further promised letter until 20th February, 2012 ("the claimant's 20th February letter"). That was last Monday. The claimant's 20th February letter stated its purpose as being:
"-- to put you [that is to say, the second and third defendants] on notice of our client's intended claims against you inter alia in breach of confidence and to require you to provide written undertakings not to broadcast, disclose or otherwise communicate certain confidential information identified by below by 4.30 p.m. on Monday 20th February, 2012 failing which our clients will apply for an injunction (on an urgent 'on notice' basis) on Tuesday, 21st February 2012. We enclose a draft of undertakings our client seeks from each of the potential defendants".
It is important also to record para. 3 of that letter, since the scope of this application was limited by it and is limited in its content today. It states,
"We make it clear at the outset that our client will not be seeking to restrain by injunction the publication of any defamatory allegations against it and nor does it seek to restrain the broadcast of any general statements about its business. The points you wish to make about our client can be made without the disclosure of its confidential information".
- The claimant's 20th February letter also provided details as to the background to Viagogo and the live event ticketing market in which it operates, portraying with emphasis the Viagogo guarantee as ensuring that:
"-- fans get what they want the most: tickets for the event they want to go to, in time for them to go to it".
It emphasised both the fact of governmental approval of the secondary ticketing market and government recognition that such approval would lead to an increase in two phenomena:
"First, that there was likely to be an increase in 'premium ticketing'. This is the practice of a primary rights holder, such as a live event promoter, allocating primary tickets to a company like our client and allowing it to sell those tickets at premium prices. Secondly, that primary rights holders would 'officially' endorse secondary ticket exchanges pursuant to an agreement whereby part of the profit on re-sale would be shared with the primary rights holder. In its Second Report of Session 2007/2008 Ticket Touting (published in December 2007) the Culture, Media & Sport Committee said in terms that 'the existing situation whereby large profits can be made on the secondary market with no benefit to the organisers or owners of the primary rights is unfair and must be addressed'".
- The letter built on this, in anticipation no doubt of a public interest justification for the use of allegedly confidential information being advanced by the defendants. In this regard I can quote from numbered paras. 15 to 22 of the claimant's 20th February letter as follows:
"15. We anticipate that Mr. Myles, Hardcash and Channel Four may try to maintain that there is a public interest in publishing whatever allegations it proposes to broadcast in Dispatches on 23rd February, 2012, and seek to contend that this provides a defence against our client's claim for breach of confidence. This is not sustainable for a number of reasons.
16. Firstly the issues that you are raising in the programme are effectively those considered not once but twice by the government which has concluded that the business methodology that you propose to criticise in the Programme is both legitimate and should not be subject to further regulation. Our client's business is conducted entirely lawfully and therefore within the terms of such existing 'regulation' which secures the interests of the public.
17. Our client is a reputable and successful company which takes great care to carry on its business within the law and to provide an excellent and attractive service to its millions of satisfied customers. It serves an important public interest in provide a safe and secure means - supported by its own guarantee - for both fans and promoters to purchase tickets for live events at the market value (be that higher or lower than the face value).
18. The central criticism which you appear to be levelling at our client is that it is misleading consumers in stating that it is a secondary ticket exchange and not a primary seller. It is, we suggest, abundantly clear that our client does not intend to mislead anyone in this respect. A cursory examination of our client's website reveals that it does sometimes offer primary tickets for sale in partnership with live event promoters and has taken steps to publicise that fact. Further, the fact that primary tickets are offered for sale through Viagogo has been referenced in a number of published articles. See, for example, articles published in Ticket News on 26 May 2010 and EU Ticket News on 27 May 2010. In addition, the reference in the Letter to maintaining the secrecy of certain sales is a misunderstanding of our client's general policy that its staff should not discuss arrangements Viagogo has with live event promoters which contain confidentiality obligations. Where it is contractually permitted to do so, our client is keen to advertise its partnerships.
19. In any event, and leaving aside for the moment whether or not the allegations in the Letter are responsible or true, it is plain that the allegation can be made without disclosing the confidential information identified herein.
20. You are fully aware that the right of free expression guaranteed by Article 10.1 of the ECHR must be set against the qualification and protections set out at paragraph 2 of the same article, as has been recognised by the courts. We refer you to Barclays Bank Plc v. Guardian News and Media Ltd.  EWHC 591; and in particular to the following at -:
'Freedom of speech is a previous value in a democratic society that the courts must strive to protect and promote. However, that does not mean that journalists should have complete freedom to publish in full confidential documents leaked in breach of a fiduciary duty, pursuant to the exercise of the right to freedom of expression. If the debate can flourish without the publication of the full documents themselves, that is a highly material factor. Responsible journalists must themselves consider whether publication of personal details that they may be in possession of, even about the affairs of corporations not alleged to have done any wrongdoing in the sense of violation of the laws, is appropriate. The more that is sought to be published, the more sensitive or confidential the data is, the self-direction of a responsible journalist is to consider whether the justification of full verbatim quotation as part of the exercise of freedom of expression is made out with particularity to the form of publication that is intended'.
21. The same reasoning as applied to 'quotation' [sic] in that case applies here, where the is no public interest justification for the verbatim disclosure of detailed and specific commercially confidential information in the Programme. The damage threatened to the Viagogo group's legitimate business interests is neither imagined nor theoretical. Since the sending of the Letter, Hardcash has been contacting promoters with whom Viagogo does business. As a result of these calls, Viagogo has already been told that, as a consequence of the threatened publication of the material, which is highly commercially sensitive not only to Viagogo but to a number of its key business partners (in particular the promotes of live events), it will lose the custom of those business partners. It is that reaction in particular from Viagogo business partners and the threats to take their business to Viagogo's competitors with the attendance very serious consequences to Viagogo's business, its employees, shareholders, etc. that has obliged our client to skeet he assistance of the court if the undertakings enclosed with this letter are not provided.
22. Further, and as we have already pointed out, no alleged public interest can justify the criminal breaches of the Computer Misuse Act 1990 which, it appears from the Letter, Mr. Myles has engaged in".
- In the event, the undertakings requested of the defendants in the claimant's 20th February letter were not forthcoming. This application ensued, as had been threatened.
- I have quoted at some length from the correspondence because I think it provides a reasonably comprehensive summary not only of the genesis, but also of the scope of the real dispute. Of course, this is amplified in witness statements, but the battle line should by now be clear. Nevertheless, and as foreshadowed above, I think it important to re-emphasise the limited scope of the claimant's application and to note what the claimant does not seek as well as what it does. More particularly, and as emphasised in the claimant's skeleton argument, this present application is not concerned with seeking to prevent C4 from ventilating these allegations - the central thrust of which is that Viagogo not only provides a market place for secondary sellers of tickets, but that primary ticket providers also sell their tickets through Viagogo. As to that, Viagogo does not claim that it restricts access to its site only to ticket sellers of a certain size or type and, indeed, in a number of instances where it is permitted to do so says that it has publicised the fact that primary ticket sellers make tickets available via its site. Rather, the claimant's concern is that the first defendant, while employed by it, gained access to detailed and specific information about Viagogo's business, which was clearly confidential. This included the names of specific individual primary ticket providers and the quantities and sale volumes of the tickets concerned. Some such confidential information is included in the letter, but the claimant has reason to fear that the first defendant took away with him further confidential information which may be included in the programme or otherwise used and disclosed by the defendants.
- In addition, Viagogo has made clear its major objection to the manner in which some of this information was apparently gathered by the first defendant, Mr Myles. He was employed, as I have explained, as a customer service associate. As such, his job functions would not have included, according to the claimant, accessing detailed information about quantities and values of ticket allocations which are set out in the Hardcash letter. In the circumstances, there is serious concern in the mind of the claimant that the first defendant abused the access credentials he was given as an employee to trawl through confidential accounts in Viagogo's computer system in order to compile the relevant information; alternatively, that he extracted data from the systems which was analysed by other persons assisting the defendants. It is the claimant's case that if he had performed such acts, this would amount to criminal conduct contrary to s.1 of the Computer Misuse Act 1990. The claimant's solicitors wrote for an immediate explanation in this regard.
- Thus, the claimant seeks not to restrain the documentary; it seeks deletions or alterations so as to protect information which it maintains is confidential. It eschews any application, and the suggestion of any application, based on an allegation that the documentary contains false information or defamatory material. It is at pains to emphasise that it accepts that its remedies in this regard are to sue in defamation, or with the Regulator, Ofcom, following the broadcast. It no doubt has recognised that if the gist of its application is considered to be to restrain a libel, its prospects of obtaining relief are very poor (see Bonnard v. Perryman  2 Ch. 269 at 275).
- With that limited scope of the application well in mind I turn to the legal principles to be applied in determining any application to prevent the publication of material where the relief sought, if granted, might affect their exercise of the right to freedom of expression set out in Article 10 of the European Convention on Human Rights. Section 12 of the Human Rights Act 1998, the Act which translates the Convention into UK domestic law, provides in relevant part as follows:
"12 (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression ...
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code".
- Thus, under s.12(3) of the 1998 Act a court is prohibited from restraining publication before trial unless it is satisfied that the applicant is likely to establish that publication should be allowed. This signifies and imports a rather different approach than that generally adopted in other contexts in this court following American Cyanamid (No. 1) v. Ethicon Ltd.  AC 396.
- More than an arguable case must be demonstrated, and the question for the court is not whether the applicant has established at the hearing of the application for interim relief that publication should not be allowed, but whether he is likely to do so at trial. The balance of convenience still falls to be considered, but though the degree of likelihood needed to satisfy s.12(3) must depend on the circumstances and have regard to the nature and gravity of feared harm, the hurdle before that consideration becomes relevant is generally higher for the applicant than in a case to which s.12 of the 1998 Act does not apply.
- In Cream Holdings Ltd. v. Banerjee  UKHL 44, the House of Lords considered the meaning of "likely" in s.12(3) of the 1998 Act. It was interpreted as having the effect that:
"-- the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial".
- The burden of proof is upon the claimant. It was expressed in this way by the Court of Appeal in Hutcheson v. Popdog Ltd.  EMLR 2:
"So far as the burden of proof is concerned it is, in my judgment unnecessary to take time over a somewhat theoretical discussion as to legal evidentiary and shifting burdens. Suffice it to say that it is for the applicant for interim relief to make out the case in that case of an infringement of his Article 8 right, and for the respondent to raise a case of freedom of expression under Article 10. But, ultimately in a matter such as this, it is plain that the burden rests on the applicant to satisfy the requirements of s.12(3) of the Human Rights Act, or fail."
- The fact that if the injunction is granted it will interfere with the freedom of the press is of particular importance, as is reflected in s.12(4) of the Human Rights Act. The claimant must establish that interference with the media is justified and necessary, irrespective of whether a particular publication is desirable in the public interest. In other words, the principal is more important than the particular case. As Lord Woolf put it in A v. B plc  QB 195 at 205,
"Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is he position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified".
- Thus, an especially cautious approach has been taken to prior restraint of the media by both English and the European courts. In Observer & Guardian Newspapers v. United Kingdom  14 EHRR 153, the European Court of Human Rights noted that,
"On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court".
- The Strasbourg position was set out succinctly by Eady, J. in CC v. ABB  EWHC 3038, QB,
"However, it is clear that prior restraints are viewed as pernicious and that, to be upheld as justifiable, their use will have to be viewed as appropriate, proportionate and absolutely necessary".
- In every case, of course, there will be competing interests and rights. In the context of the Article 10 rights and s.12(3), the most usual competing interest or right is the right to respect for private and family life, expressed in Article 8 of the Convention. The balance in that context is often a particularly difficult one. In this case, however, it is agreed that Article 8 does not apply, the claimant being body corporate. Rather, the issue is whether the alleged right to protect confidential information as asserted by the claimant is such as to be likely at trial to warrant prevention of its publication by a permanent injunction.
- Although, as I explain later, I have had some doubts whether the real object of the claimant is to preserve confidentiality as distinct from to protect its trade and reputation, that is the right which the claimant invokes and relies upon. To succeed, it must first establish with particularity what is alleged to be confidential and why (see Toulson & Phipps on Confidentiality at paras. 3085 to 3087). It must then show that there is no reason to deny or strip away the confidentiality which the information would otherwise attract - for example, on the basis, and to use an old and familiar phrase deployed by both counsel, there is no confidence in iniquity (see Attorney General v. Guardian Newspapers (No. 2)  AC, 109 at 269). Thirdly, it must go on to show that in the balancing exercise the private right of confidence, which it is in the public interest to uphold, outweighs any proper public interest in disclosure, it being clear that even the express terms of the contract would be unenforceable if it would prevent publication that is justified in the public interest (see again Attorney General v. Guardian Newspapers).
- As to the first two elements, the 20th February letter from the claimant's solicitors to Mr. Dominic Harrison as C4's lawyer (legal and compliance), recognised the need for the claimant to satisfy the court that, first, the information has the necessary qualify of confidence about it; second, the information has been imparted in circumstances importing an obligation of confidence; third, there is an unauthorised use or threatened use of that information to the detriment of the party communicating it (Coco v. A. N. Clarke  RPC, 41 at pp.47-48).
- As for the first of these elements, the 20th February letter sets out in a confidential schedule, and identifies as confidential, details relating to the existence of arrangements for the sale through the Viagogo website of primary tickets and in particular the names of some of the promoters and allocators of those tickets; (b) the specific number of primary tickets allocated and the individual and aggregate sale proceeds; and (c) arrangements regarding sharing of profits upon which the claimant does business with promoters and allocators.
- As became clear in the course of the hearing, in the case of the first two categories it is really the promoters or allocators who are, in truth, the persons substantively at interest. Counsel for the claimant, Mr. Martin Howard, QC, described the claimant's claim in this respect as in effective being derivative, the claimant perceiving it to be its duty to vindicate the rights of the promoters and allocators who had reposed confidence in it.
- Four principal points may, I think, be noted in this context. First, as I understand it, any promoters or allocators proposed to be named have been given forewarning by C4 or Hardcash. It is a notable feature that there is no evidence that any of these has voiced any objection to what has happened or any support for the proceedings. Indeed, as I understand it, the only promoter who responded was happy to admit the relationship with the claimant.
- Secondly, though it is asserted in paras. 20 and 47 of Graham 1 that "in all theses cases the promoter concerned required and expected Viagogo to keep the information and in particular the identity and the identity of the artist they represent confidential and Viagogo agreed", there was no documentary or supporting evidence put before me or suggested to be available to support this. Furthermore, no reason was advanced why such promoters would wish these details to be kept confidential, if indeed they considered the sale of primary tickets through the website to be proper.
- Thirdly, there is, in evidence, a statement dated 21st February, 2012 issued by the Concert Promoters Association, of which (I was told by leading counsel on behalf of the defendant) all the promoters and allocators concerned are members, in which the CPA does appear to support the use of responsible secondary markets as a premium price market for those fans who wish to use it for convenience. The grounds given in that statement are:
"We are sure that those fans who use the secondary market for convenience and are prepared to pay a premium would be happier that the premium went to the artist via the promoter rather than went to a tout".
But this second point appears to my mind at any rate to suggest that promoters and allocators would not regard their arrangements as a secret properly requiring and justifying protection and, indeed, secrecy would, to my mind at least, tend to undermine the justification advanced in that statement of selling at premiums in an ostensibly secondary market.
- Fourthly, it does appear from material collated by the first defendant that within the claimant its managers considered the practice of primary ticket sales, and especially also the buying up of tickets from Ticketmaster on behalf of the claimant for immediate onward sale, to be - and I use less colourful language than at least some of the managers deployed - high unethical. Mr. Henshaw, in his witness statement, states as follows,
"I strongly believe Viagogo's primary aim in making this application on the pretext of 'commercial confidentiality' is to prevent members of the public finding out (1) the true source of many tickets, and (2) the extent of Viagogo's collusion with promoters and professional sellers so that they benefit from a huge mark-up on tickets which were never available for sale at face value to the public. On the admission of their own managers, the reasons for secrecy are to keep the public in the dark, not for fear of confidential information falling into commercial rivals' hands and that these activities are, in their managers' own words, 'shady' and 'highly, highly immoral'".
- Turning now to the third category of allegedly confidential information, that is comprised of details terms of business between the claimant and its contractual partners. This category of information is more obviously not only prima facie confidential, but also in the Claimant's own interest to protect from disclosure. . In this context the claimant is seeking to vindicate its own commercial interests, not a derivative interest, and there is no particular reason to envisage the claimant not wishing to assert its confidential nature in the future. I would be more inclined to accept this category should be protected subject to the points made by the defendants that the information relates to an improper trading practice which conceals the truth from consumers (to which I return below).
- As to the second limb identified in the 20th February letter in the context of establishing a case for breach of obligations of confidence, the circumstances in which the information said to be confidential came into the hands of the first defendant and, through him, the other defendants, it is important to note the terms of the contract of employment which, as I have indicated previously, the first defendant signed. This provided, amongst other things, as follows in Clause 14:
14.1 ... You will not ... use for your own purposes or disclose to any third party and shall use your best endeavours to prevent the publication or disclosure of any confidential information. Confidential information includes files, records ... database systems ... customer and supplier lists, information regarding customers, buyers and suppliers ... marketing plans, financial information and any similar items, the company ... financial structure and operations and any other information which the company regards as confidential.
14.2 All confidential information and all other documents, papers and property which may have been made or prepared by you or at your request, or have come into your possession or under your control in the course of your employment, or which relates in any way to the business including prospective business or the affairs of the company or any other group company, or those of any customer, supplier, distributor or sub-contractor of the company or any other group company are deemed to be the company's property and you must return all such documents and other property, including all copies, to the company immediately upon the termination of your employment or at any earlier time on demand".
- The fact of this express contractual restraint is obviously important. As noted in the claimant's skeleton argument, a pre-existing relationship of confidence is "a significant element to be weighed in the balance" and "is not enough to justify publication that the information in question is a matter of public interest".
- Because there is a public interest in the maintenance of confidences, the court must also ask itself whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached (see Prince of Wales v. Associated Newspapers). Further, it was said in Campbell v. Frisbee  ICR 141 at para. 22, that it is at least arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight when balanced against the restriction of the right of freedom of expression than a duty of confidentiality that is not buttressed by express agreement.
- Also to be weighed in the balance is the claimant's major objection "to the manner in which some of this information was apparently gathered by the first defendant". He was employed as a customer service associated and "as such his job functions would not have included accessing detailed information about quantities and values of ticket allocations which are set out in para. 8 of the 7th February letter". In the circumstances, so the claimant's skeleton argument continues, there is serious concern that the first defendant abused the access credentials he was given as an employee to trawl through confidential accounts in Viagogo's computer system to compile the relevant information; or, alternatively, that he extracted data from the systems which was analysed by other persons assisting the defendants.
- Further, and as I have indicated, it is the claimant's case that if he did perform such acts, that would amount to criminal conduct contrary to s.1 of the Computer Misuse Act 1990. This latter contention was not elaborated in great detail by counsel for the claimant before me. The factual basis for it, especially as to whether the first defendant thought he had authority to access computers as he did, remains unclear. I do not, in my judgment, have material sufficient to justify a conclusion that breach and conviction is likely. Further, I did not understand counsel for the claimant to contend that the possibility of the breach of this statute was of itself a ground for granting relief notwithstanding that if the breach is established there is a criminal offence too. Nevertheless, and as I explain later, this and the covert nature of the first defendant's operations and filming must plainly be brought into the balance.
- As to the third limb concerning threatened unlawful user, the occasion of the application is the imminent prospect of the airing of the documentary which may reveal information which is stated to be confidential. There is plainly a threat of its use. The potential detriment if information which is confidential is made public by the programme is also reasonably clear, although I would point out in that regard that, without foreclosing any other claim that the claimant may in due course have, such damage or detriment as may already have been suffered may have been the result of the fact that in accordance with its own protocols C4 was obliged to inform the promoters and allocators of the breach of confidentiality. This may impact on causation and the extent of damage.
- Pausing there, however, the conclusion I need to reach at this point, as it seems to me, is whether a sufficient case has been indicated that the intended disclosure in the programme is material to which, but for other factors, the court would ascribe confidentiality of such a nature that it should, at law, or in equity, protect it at trial by permanent injunction.
- In my judgment, and having regard to the derivative nature of the claim for protection and the lack of any apparent concern on behalf of any of the promoters themselves, it is not clear that the necessary quality of confidence maintainable by the claimant and deserving the protection of the court would be established at trial in relation to the first two categories of information. The evidence as to the arrangements said to give rise to the obligation of confidentiality at that first stage is somewhat sparse, and the attitude of those whose confidential information it is seems at best equivocal. It does not seem to me that in the case of the first two categories there is a sufficient evidential showing that the persons whose rights are sought to be derivatively vindicated insisted on confidentiality at the time and would at trial require it.
- However, and s indicated above, the third category of allegedly confidential material which is the information relating to detailed terms of business is or may be rather different, for the reasons I have already indicated.
- That brings me to the balancing exercise. Of course, if there were no confidential information worthy of protection at all, that exercise would not arise. But, I turn to undertake it in case I am wrong in my conclusion as to Categories 1 and 2 above and because of my different conclusion as regards Category 3. The question I now have to address is whether there is a public interest in disclosure such as to outweigh confidentiality, even if confidentiality is assumed, such that no injunction would be likely to be granted at trial. This is really the principal issue in the application.
- I think I can state my conclusions fairly shortly at the outset. In my judgment the claimant has not demonstrated that at trial the court would be likely to grant a permanent injunction even if the material is considered confidential and otherwise worthy of protection. The public interest in disclosure in all the circumstances of this case would be likely in my view to outweigh the private right. As it seems to me, there is real substance in the point made by the defendants that the claimant is concealing from the public that its website is used for a substantial amount of primary ticket sales and that its aim in seeking to prevent disclosure is, as Mr. Henshaw puts it in para. 19 of his witness statement: "-- to prevent members of the public finding out (1) the true source of many tickets; and (2) the extent of Viagogo's collusion with promoters and professional sellers so that they benefit from a huge mark-up on tickets which were never available for sale at face value to the public".
- I consider further, although this may be, in reality, an elaboration of the above, that an important aspect of the current case is that the claimant has previously made public statements which appear to be misleading and inaccurate. For example, (1) it states on its website that it is a secondary ticket exchange and not a primary ticket seller; (2) it told the Competition Commission in 2009 that it is a fan-to-fan ticket exchange which allowed people who had purchased tickets to live music or other events to re-sell them to other people; and (3) on 10th January, 2008 it told the BBC:
"We are a marketplace that lets people trade tickets so if you are a genuine fan with a ticket to sell, you can sell it to another fan",
and on 14th October, 2007:
"What we do on Viagogo is we match fans. It is actually fans who are exchanging a ticket".
- It does seem, as I have indicated, that it is simply not the case that the claimant operates a fan-to-fan exchange and nothing more; nor in effect is it true that they are not a primary ticket seller. It thus appears that the claimant's presentation of the web-site to the public may be misleading.
- In the case of Campbell v. MGN Ltd.  2 AC 457, the House of Lords were in unanimous agreement on the point of principle that correcting misleading public statements was a legitimate public interest function of the media - for example, Baroness Hale said this,
"The press must be free to expose the truth and put the record straight".
This was supported by Lords Nicholls, Hoffmann, Hope and Carswell.
- The principle has also been reiterated in a number of other confidential information and privacy cases. For example, in Campbell v. Frisbee the Court of Appeal held to be arguable a defence seeking to justify disclosure of confidential information on the basis that the claimant supermodel had painted a false picture of herself to the public. This was arguably sufficient to override an express contractual obligation of confidence in a contract for services. Secondly, in McKennitt v. Ash, Eady, J. said:
"I have little doubt that, more generally, where a claimant has deliberately sought to mislead the public on a significant issue, that would be regarded as a sufficient reason for putting the record straight, even if it involved a breach of confidence or an infringement of privacy".
That element of the judgment was not disapproved in the Court of Appeal.
- Thirdly, in X&Y v. Persons Unknown  EMLR 10 it was said:
"Another question which may have to be determined, if it is relevant to the case, is whether there is information which shows that the public has been misled by the applicant in some respect, so as to justify a journalist putting the record straight by revealing information which would otherwise fulfil the criteria for legal protection ----"
- In Mosley v. News Group Newspapers it was said:
"I have well in mind naturally that one aspect of the public interest is a need to protect the public from being misled by a statement made by or on behalf of the relevant. That is recognised expressly in the terms of the Code of Practice promulgated by the Press Complaints Commission".
A reference is made also to the observations I have already quoted in Campbell v. MGN Ltd.
- The public interest in correcting false images is also explicitly recognised by the PCC and the Ofcom code to which the court must have particular regard in applications of this kind. The definition of public interest in the Ofcom code indeed specifically includes "exposing misleading claims made by individuals or organisations".
- In summary, as it seems to me, although no doubt the claimant can point to indications, both on the website and in other places, that the website exchange which it operates is not exclusively devoted to secondary tickets, the overall impression that it creates and which I would expect the public to rely on, is that it is a market for fan-to-fan exchange and not a surreptitious outlet for primary tickets which they would expect to be available at the advertised prices at the box office.
- In reaching my conclusion I have also taken into account three further factors. The first is the latitude which the court, because it is not experienced and wary of intervening in the editorial function, allows to journalism; secondly, that the information intended to be included in the broadcast includes information that was obtained covertly; and, thirdly, entirely pragmatic considerations.
- As to the first, as I have indicated, the claimant is at pains to emphasise that it is not seeking an order preventing the naming of Viagogo. I have already quoted their insistence that the allegations may be made with equal force with or without the information set out in the confidential schedule.
- That is plainly an important question to consider: as Blake J. said in Barclays Bank Plc v. Guardian News and Media Ltd  EWHC 591 (QB) at para. 30:
"If the debate can flourish without the publication of the full documents themselves, that is a highly material factor."
- However, it is clear from the authorities that whether such specific details as are included in the final programme or not, it is ultimately a matter which needs to be determined by the journalist and the court must grant reasonable latitude to such editorial decisions. That is not to say that the courts afford to the journalist or editor carte blanche, but simply that when weighing whether a programme or other publication can be edited in a particular way, it gives deference to the considered view of an editor or journalist that without the relevant detail the general impact and the overall credibility of the article or programme in question will be seriously undermined such that it will not have the desirable impact on the public reading or looking at the relevant programme. Reasonable latitude, in other words, does not mean that the court simply abandons any responsibility, but it does connote that the court does take into account that the process of communication via journalism or via programmes is not its special field.
- Despite the differences of views on the particular facts, the House of Lords in Campbell v. MGN was unanimous on the underlying principle that reasonable latitude of that kind must be given as to the manner in which information is conveyed to the public - otherwise there will be a serious chilling effect on freedom of expression. As Lord Hope put it:
"There is no doubt that the presentation of the material that it was legitimate to convey to the public in this case without breaching the duty of confidence was a matter for the journalists. The choice of language used to convey information and ideas, and decisions as to whether or not to accompany the printed word by the use of photographs, are pre-eminently editorial matters with which the court will not interfere. The respondents are also entitled to claim that they should be accorded a reasonable margin of appreciation in taking decisions as to what details needed to be included in the article to give it credibility. This is an essential part of the journalistic exercise".
- Lord Hope also cited with approval a passage from Jersild v. Denmark (1994) 19 EHRR 1:
"It is not for this court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the court records that Article 10 protects not only the substance of ideas and information expressed, but also the form in which they are conveyed".
- In Re BBC  1 AC 145 it was suggested that it would be open to the BBC to raise an issue of general interest without mentioning an individual's name or in any way disclosing or giving information which might disclose his identity. However, the House of Lords held that the BBC should not be required to restrict the scope of their programme in this way; it was a matter for the BBC to judge whether the publication of the name would give added credibility to the programme. Again, quoting Lord Hope,
"The freedom of the press to exercise its own judgment in the presentation of journalistic material has been emphasised by the Strasbourg court".
Then he quotes Jersild v. Denmark. He goes on,
"In essence article 10 leaves it for journalists to decide what details it is necessary to reproduce to ensure credibility: see Fressoz v France (1999) 31 EHRR 28, para. 54. So the BBC are entitled to say that the question whether D's identity needs to be disclosed to give weight to the message that the programme is intended to convey is for them to judge. As Lord Hoffmann said in Campbell v MGN Ltd  2 AC 457, para 59, judges are not newspaper editors. They are not broadcasting editors either. The issue as to where the balance is to be struck between the competing rights must be approached on this basis".
- This dicta was affirmed by Lord Rodger in Re Guardian News & Media  UKSC 1, para. 63:
"Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed .... This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive."
- Lastly, the European Court of Human Rights said this month in von Hannover v. Germany (No. 2),
'It is not for the court, any more than it is for the national court, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case'".
- As to the second factor mentioned in paragraph 63 above, I should expressly record that I appreciate, and have taken (as I regard it) fully into account, that there is also a public interest not only in preserving private confidences, but also in discouraging covert activities and especially the unlawful garnering of evidence. This is a matter which has caused me some concern. It is in the nature of the activities of the first defendant that they were covert and that the circumstances in which he obtained the information which is to be in part the subject of the programme came to him in a manner which was unknown and would have been strongly disapproved of by the claimant, his employer. The use of information obtained in such a way is obviously a matter of concern unless the process is properly monitored, and unless the public interest outweighs the other public interest in not encouraging such activities.
- In this regard I have been provided with detailed evidence, as I have previously mentioned, on behalf of C4 as to the scrupulous attention that they paid to both their own internal guidelines and the Ofcom guidelines. I do not myself consider that I can gainsay that. In any event, as it seems to me, and especially having regard to the view within the claimant itself that the way in which it is conducting its website in this particular respect in relation to primary tickets and the sweeping up of a considerable number of tickets from Ticketmaster, is, to put it no higher, shady.
- The third factor identified in paragraph 63 above is as to the practicalities of any intervention by the court now. In this regard I quote from the last paragraphs of Henshaw 1. He draws attention to the fact that in a letter of 21st February the solicitors for the claimant, Lewis Silkin, disputed C4's submission that it was simply too late to edit out the allegedly confidential information in time to ensure broadcast on Thursday, 23rd February, which is today. Mr. Henshaw said this,
"This is a matter of practical fact, since this material is threaded throughout the Programme and would necessitate complex editing which would take several days. It is not simply a matter of omitting one or two small sections of the programme. It would involve not just re-editing, but also reviewing the rest of the Programme for any necessary consequential changes, radical re-writing of the script, re-recording sound and commentary for the programme".
- In other words, it is not simply a matter of blue-pencilling or striking out individual parts and leaving the whole intact. The process of editing would cut through the programme as a whole and might well, in the event, so delay editing as to prevent its broadcast on the given day.
- Of course, that gives rise to competing arguments as to why it was that this matter was having to be addressed so late in the day, and at a stage when it was really impractical for the court to do anything other than either decline the relief sought, which would possibly cause detriment to the claimants, or simply grant the injunction sought which would, the court is told, likely result in difficulties in broadcast. This was described by leading counsel on behalf of the claimant as, in effect, putting a gun to the court's head.
- It is in the nature of things, although it may be regrettable, that these matters do go up to the wire. Sometimes it is more difficult to determine where the greater fault lies. But, in this case, as it seems to me, C4 and Hardcash did give fair notice on 7th February in very detailed terms as to the matters which they intended to include in their proposed broadcast which would, or might, concern the claimant. It is the fact that it did take the claimant a considerable time to ensure a proper response. Indeed, it was only last Monday, 20th February that the claimant made clear that its objection was such that it would, that very day, seek interlocutory relief.
- In other words, as it seems to me plain if I were called upon to determine whose fault it is that we are in the invidious predicament which confronts me, it seems to me that it is the claimant who bears the primary blame and has thus brought the difficulty upon itself. I do not therefore consider that any gun has been put to my head, at least by the defendants.
- Finally, and as I briefly foreshadowed earlier, I have had a concern that the real purpose of the claimant's application in this case is really to protect its reputation rather than any confidential information. What, as it seems to me, it is arguable the claimant is really seeking to do is to impede C4 from broadcasting a matter of public interest because it fears that its business will thereby be damaged in terms of its reputation.
- Of course, if the claimant does have a recognised contractual right of confidence it is not for me lightly, or possibly at all, to inquire as to the motives for its exercise. But, in this particular area it does seem to me appropriate for the court to stand back and ask itself what really is the gist and purpose of the application. This was the exercise which was undertaken by Mann J. in Tillery Valley Foods v. Channel 4 Television  EWHC 1075 where, in admittedly different circumstances Mann, J. at the end of his judgment noted that the truth of the matter in that case was that it was not really about confidentiality at all; it was simply put that way in order to circumvent or finesse the roadblock which, as I have previously indicated, might be presented by the case of Bonnard v. Perryman.
- It seems to me, in other words, that the court does need to be astute to consider what truly is the nub or gist of the application. As it seems to me and, as for example in another case, Terry v. Persons Unknown  EMLR 16, the court is entitled to look behind the presentation and ask itself what really is the nub. In circumstances where the promoters themselves in the context of Categories 1 and 2 of the confidential information asserted have not indicated any concern or support for the claimant's efforts to vindicate derivatively their right I am bound to ask myself whether, in truth, even as regards Categories 1 and 2 the true nub is protection of the claimant's business reputation rather than the promoters' allegedly confidential information.
- It is not easy in the circumstances to be sure what the true characterisation of the action is. I should, I think, make clear that these concerns are not the basis of my decision. But they have further confirmed me in my view that I should not accede to this application.
- These, therefore, are the reasons why yesterday, given that I apprehended that a decision, if not the reasons, was urgently required, I declined to grant any of the relief that was sought. I need add only this as a post-script: that it became clear also, particularly in considering whether to grant very temporary relief pending any appeal, that the evidence provided as to the reliability or security of the cross-undertaking that would have been required was far from adequate.
- Finally, I simply record that an application for costs was inevitably made on behalf of the defendants; and it seemed to me that, the adventure of the claimant having failed, it was only right that costs should follow the event and that the claimant should pay those costs, which I summarily assessed.
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