The right to access and sell real-time sporting data is much coveted, and the licensing of such data has been subject to litigation to the highest levels, including the Court of Justice of the European Union. Earlier this month, the issue came before the Court of Appeal again, this time in relation to a dispute over whether ‘betting shows’ and raceday data are confidential, and whether the access and use of them constituted conspiracy.

Background

The dispute related to data regarding horseracing, namely betting shows (i.e. odds information) and raceday information relating to the course/races, e.g. the weather, the 'going' (the state of the course), any steward inquiries, the withdrawal or non-running of horses, changes in jockeys, start time, finish time, and the result. This information is essential for setting odds accurately and can only be obtained on-course. The data is therefore commercially very valuable to off-course bookmakers because it allows them to give better/more accurate odds. The trouble is that the information is only valuable for a matter of minutes and sometimes seconds, losing much of its value from the moment the horses leave the starting gate. So how do off-course bookmakers get that information?

Previously, Sport Information Services (“SIS”) had exclusive access to that information from Arena Racing (the owner of a number of UK racecourses) which it would then use to compile and distribute betting information to off-course bookmakers. That agreement was terminated when Arena set up its own corporate entity, The Racing Partnership (“TRP”) to essentially replace SIS. SIS therefore sought to circumnavigate the restrictions placed on attendees at the racecourse by entering into an agreement with the Tote. The Tote had access to the raceday data and provided it to SIS, however by doing so, the Tote was exceeding its powers as it was only permitted access for ‘pool betting’ services, not ‘fixed-odds’ betting. As a result, Tote was found to be a trespasser on the racecourse in so far as it went beyond its permitted purpose.

TRP brought claims for copyright and database infringement, misuse of confidential information and unlawful conspiracy to injure. Betfred, Ladbrokes and the Tote all entered into confidential settlements with TRP. All claims against SIS except misuse of confidential information were dismissed at trial. SIS appealed the finding that it had misused confidential information and TRP appealed the decision dismissing the claim in relation to unlawful conspiracy to injure.

Breach of Confidence

To have acted in breach of confidence, SIS must have known or ought to have known that the Tote had provided them with raceday data which was confidential and could not be used for commercial purposes. One of the judges, Arnold LJ, considered that, in the circumstances, SIS (being TRP’s predecessor and knowing the Tote’s power originated from a government initiative in relation to ‘pool betting’ only) should have known the information was confidential.  However, the other judges (crucially, a majority) found that a ‘reasonable person’ in SIS’s position could not have been expected to know the information was confidential because (i) the Tote had regulated its relationship with Arena Racing and there was no limitation on the use of the raceday data contained in that contract; and (ii) SIS had asked for, and been given, warranties from Tote that it was acting within its powers. In other words, SIS had managed the risk and could rely on what it had been told by the Tote. SIS wins… on the breach of confidence claim.

So is protection via breach of confidence a non-runner? Certainly not. Whilst there may be less clarity than originally thought on whether each element and/or the compilation of live, on the day, sports data, is confidential, the CoA’s decision substantially came down to the specific facts. Clearly, in-person information affecting odds has a commercial value to off-site bookmakers, and by racecourse owners (and their equivalents in other sports) exercising control over who has access to that information by limiting its distribution, the information can be confidential; it is not automatically ‘public’. Those looking to exploit that information for their own commercial purposes, such as SIS, need to carefully analyse the source, be alive to issues of breach of confidence and address the issue in their contractual agreements.

Unlawful conspiracy

However, while SIS was off the hook on the breach of confidence claim, the Court of Appeal found it to have conspired with the Tote, Betfred and Ladbrokes to injure TRP by unlawful means because, unlike the High Court, the Court of Appeal decided that SIS did not need to have any idea that the unlawful means were unlawful. So despite not actually being held liable for breach of confidence (because SIS did not have the requisite actual or constructive knowledge that the information had been imparted to them in confidence) its collection and use of that de facto confidential information could nevertheless still amount to conspiracy by unlawful means. The judges were not aligned on this however and the authorities were not crystal clear, so there could be a fair few furlongs to be run in the Supreme Court. Watch this space!

The Racing Partnership Ltd & Ors v Sports Information Services Ltd [2020] EWCA Civ 1300