Viagogo Ltd v Myles & Ors

Interim relief restraining publication which may affect freedom of expression requires more than an arguable case. Under section 12(3) of the Human Rights Act 1998, the applicant must show prospects of success at trial sufficiently favourable to justify restraint. In a confidentiality claim, the applicant must identify the information with particularity, establish the necessary quality of confidence and an obligation of confidence, and show threatened unauthorised use causing detriment. The court must then balance confidentiality against the public interest in disclosure. That public interest may include correcting misleading public statements. Courts should also allow reasonable latitude to editorial decisions about the form and detail of journalistic publication. Prior restraint is exceptional, particularly where the application may in substance seek to protect reputation rather than confidential information.

Viagogo Limited applied urgently for interim injunctive relief against Paul Myles, Hardcash Productions Limited and Channel Four Corporation Limited. The respondents intended to broadcast a documentary examining secondary ticketing and the use of Viagogo’s website for primary ticket sales. Viagogo did not seek to restrain allegedly defamatory allegations generally. It sought deletions or alterations to prevent disclosure of information said to be confidential, including promoter identities, ticket allocations, sale proceeds and contractual terms.

The application followed an earlier letter giving detailed notice of the intended programme. The central questions were whether the information was likely to receive protection at trial and whether the public interest in disclosure nevertheless outweighed Viagogo’s asserted right of confidence.

1. Application dismissed. The court declined all the relief sought. Costs followed the event and were summarily assessed against Viagogo.
2. Section 12(3) of the Human Rights Act 1998 required Viagogo to show more than an arguable case. The question was whether its prospects of establishing at trial that publication should not be allowed were sufficiently favourable to justify interim restraint. The burden remained on the applicant. The balance of convenience was relevant only after that threshold had been met.
3. A claim for breach of confidence required particular identification of the confidential information and its basis for protection. Viagogo also had to establish the necessary quality of confidence, circumstances importing an obligation of confidence, and unauthorised use or threatened use to its detriment. Information concerning promoter identities and ticket allocations was advanced derivatively, but the evidence that the promoters required confidentiality was sparse and their attitude was equivocal. Viagogo therefore had not shown a sufficient likelihood of protecting those categories at trial.
4. Detailed contractual terms of business were more obviously capable of being confidential. Nevertheless, assuming that category deserved protection, the public interest in disclosure was likely to outweigh Viagogo’s private right. The evidence indicated that Viagogo’s public presentation as a fan-to-fan secondary exchange might be misleading because the website was also used for primary ticket sales. Correcting misleading public statements was a legitimate public-interest function of the media.
5. The court had to give reasonable latitude to editorial decisions about the detail and manner of presentation. That latitude did not give broadcasters carte blanche, but judges should not substitute their views for those of journalists as to what details were needed for credibility and impact. The covert obtaining of information was relevant and caused concern, but the respondents’ compliance with applicable editorial and regulatory safeguards, together with the public interest in disclosure, outweighed it.
6. The court was entitled to consider the true substance of the application. Although Viagogo framed the claim as protection of confidential information, the underlying purpose might have been to protect commercial reputation. That concern was not the basis of the decision but reinforced the conclusion.

This was a first-instance application in the High Court. The judgment records an earlier procedural hearing before Floyd J on 21 February 2012, when the matter was adjourned for evidence and directions concerning confidentiality.