An order for disclosure – known as a "Norwich Pharmacal" order – can be made in certain circumstances where a person has unwittingly facilitated a wrongdoing. The "facilitator" (in this case Viagogo.com) can be ordered to assist the wronged party by giving him full information and disclosing the identity of the wrongdoers. The ruling paves the way for the RFU to take action against individuals who breached its ticket policy for those specific matches. In the longer term, the prospect of being identified and served with a legal claim may deter others from flouting ticket conditions by putting their tickets onto the secondary market.
The RFU's policy is to maintain affordable ticket prices in order to promote and encourage interest in the sport across a wide section of the public. This is reinforced by the RFU's terms and conditions. Advertising tickets for re-sale is prohibited, as is reselling at a price higher than the face-value of the ticket; and tickets bought in breach of the RFU's terms are "null and void".
Viagogo.com is one of many online marketplaces that allow ticketholders to anonymously advertise tickets for sporting or other cultural events. Prospective buyers can search and use the site to buy tickets for their chosen event direct from the seller. RFU tickets were among those traded on the site.
Viagogo.com conceded that by allowing RFU tickets to be traded through its site, it was arguably facilitating a "wrongdoing" – in this case, breach of contract and trespass. However, Viagogo.com argued that the order should not have been granted because it interfered with users' privacy rights, and this interference was not proportionate when weighed up against the benefit that the RFU would gain from having the names of the wrongdoers disclosed.
The Supreme Court confirmed that the order had to be proportionate, but was willing to take into account a wide range of factors, including the potential deterrent effect that the order would have in the future. The Court described the RFU's motives in seeking to maintain ticket prices at a reasonable level as "worthy" and in the interests of those members of the public who wanted the chance to attend international matches. These factors outweighed the privacy rights of people who had sold tickets in stark breach of the ticket conditions.
Apart from limited exceptions (notably football tickets and more recently, tickets for London 2012), there are no statutory restrictions that prevent the resale of tickets for events. With the secondary ticket market thriving, and the Coalition Government having made clear that it favours self-regulation, organisers that want to control or restrict the resale of tickets for their events must rely on their ticket terms and conditions. The RFU case shows the difficulties of enforcing a ticket policy, particularly where transactions are conducted online and anonymously. By the time the legal process has run its course, the event may already have taken place. Nonetheless, this Supreme Court ruling gives events organisers an additional tool to draw on in their dealings with online ticket marketplaces.