It is a popular adage in today's society that "data is king"; this is as much true in the sporting industry as in any other. For many years, rightsholders (typically the organisers of an event or competition) have sought to monetise and exploit the data gathered from sporting events. In practice, in order for the data to have commercial value, the event organiser needs to be able to control the dissemination of the data, and prevent unofficial data collection by third parties (referred to as "scouts"). This has traditionally been achieved by using: (i) the terms and conditions of entry into the sporting arena, which typically prohibit entrants from collecting and transmitting any data from the event for any commercial purpose; and also (ii) intellectual property rights, such as the sui generis database right that exists within the European Union.

A recent High Court judgment has now added "breach of confidence" to the list of potential claims that rightsholders may be able to bring against those who collect and/or receive unofficial data streams from sporting events. 

In order to be able to make out a claim for breach of confidence, the rightsholder must be able to demonstrate that a reasonable person in the unofficial data collector's position (and, if the claim is to be extended to the recipient of that information, a reasonable person in the recipient's position) would have known that the data was confidential.  The Court was not prescriptive about the precise way in which this could be proved, but in this case, it was sufficient to show that: 

• The event organiser had imposed (through terms and conditional of entry and ground regulations) a general prohibition on the collection and distribution of such data for commercial purposes;
• The data itself is commercially valuable, and that the general prohibition imposed above is essential to the ability to exploit the information and achieve that commercial value. In practice, this may be as simple as demonstrating that the right to collect data from an event has been licensed for valuable consideration.

This decision clearly represents a positive outcome for rightsholders, who now have an additional remedy, in addition to those that they had traditionally used, namely a contractual claim against anyone who collected unofficial data from an event in breach of the ticketing terms and conditions or a common law claim for trespass.

Other potential remedies available to competition organisers include potential private prosecution actions under the provisions of the Gambling Act 2005, or even under the Fraud Act 2006 (as previously discussed in one of our previous articles, found: here). And of course there is always the option to be able to evict (and potentially ban) data scouts from the premises.

The full judgment can be found here: https://www.bailii.org/ew/cases/EWHC/Ch/2019/1156.html