Rapid Reaction: TRP v SIS: Court of Appeal gives decision in live sports data case

Breach of confidence: SIS wins, it didn’t act in breach of confidence

By a 2-1 majority SIS have succeeded in overturning the decision that they acted in breach of confidence by receiving raceday data from the Tote. In the minority, Arnold LJ rejected their appeal, holding that the inaccessibility of “Key Raceday Triggers” (non-runners, withdrawals, the off and the result) was sufficient to make those particular pieces of data confidential in the short period prior to their broadcast. He further upheld the Judge’s findings that, notwithstanding the warranties and indemnities provided by the Tote regarding their ability to lawfully provide the data, SIS should have reasonably known that the information was confidential and it was therefore subject to an obligation of confidence. 

Lewison LJ substantially disagreed with Arnold LJ, taking as his starting point freedom of speech and the fact that the Key Raceday Triggers were broadcast almost instantaneously. Lewison LJ concluded that it was not reasonable to expect SIS to have known that the information was confidential. In reaching this conclusion, he placed particular emphasis ON the fact that if two parties have chosen to regulate their relationship by contract, a reasonable person would expect to find any bar on the dissemination of information in the express or implied terms of the contract. The judge had found no such term in the agreement between the Tote and TRP and it was reasonable for SIS to conclude that there was no restriction on the Tote providing them with Key Raceday Triggers..

Phillips LJ agreed with Lewison LJ on this issue (making it 2:1 in favour of SIS). He considered that a reasonable person receiving information on the basis of a warranty from a reputable counterparty would not be on notice that the information was supplied in breach of an equitable duty of confidence unless there were clear countervailing indications, sufficient to override the contractual assurance of the party best placed to assess its own entitlement to provide the information. In the present case SIS made inquiries of and received assurances from the Tote which caused SIS to conclude and proceed on the basis that the Tote was lawfully entitled to provide the information. He found it difficult to see why a reasonable person would have been expected to make further or different inquiries and/or to have reached the opposite conclusion. 

Unlawful means conspiracy: TRP wins, SIS had engaged in an unlawful means conspiracy 

The court was also split on whether to overturn the first instance decision that SIS had not engaged in an unlawful means conspiracy. However this time the majority went the other way, with Arnold LJ and Phillips LJ holding that SIS had engaged in an unlawful means conspiracy and Lewison LJ disagreeing. A key issue in dispute was whether conspirators needed to know that the means are unlawful (Arnold LJ and Phillips LJ thought they did not, Lewison LJ though they did). Another was whether web scraping from third party betting exchange websites could be relevant unlawful means (Arnold LJ and Phillips LJ believed it was, Lewison LJ did not believe it was right to interfere with the first instance Judge’s finding that it was not). The net result was that SIS was held by the majority to have engaged in an unlawful means conspiracy, both in relation to a breach of confidence and by scraping data from betting exchange websites.    

Initial reaction: We could be going to the Supreme Court 

Lewison LJ appears to express scepticism as to whether the Key Raceday Triggers were in fact confidential, but doesn’t expressly disagree with Arnold LJ on this point (Phillips LJ also expresses no view on the issue).  It’s important to note however that the court did reject the decision at first instance that other categories of raceday data could be confidential (e.g. the weather and going), although part of the reasoning was that TRP had not actually pleaded that they were in the first place.   

The majority decision that SIS was reasonably entitled to rely on the contractual warranties and indemnities provided by the Tote potentially has wider implications. While the decision is premised on the specific circumstances in this case, the comments made by Lewison LJ and Phillips LJ suggest that it may be reasonable for a party to rely on contractual assurances regarding the legality of a data source, unless it can be shown it was not reasonable to rely on them. The decision regarding the knowledge requirement for unlawful means conspiracy also touches on a fundamental legal issue, which has implications far beyond the present case. It is the sort of issue which the Supreme Court may want to review, assuming SIS appeal further.  TRP may also have a chance of interesting the Supreme Court in revisiting the breach of confidence decision particularly given the Court of Appeal was split on the issue.