Football Dataco organises and manages a database called Football Live in which it compiles match data about football matches in the English and Scottish Premier leagues. Football Dataco gives customers access to this database via its website. Sportradar, a German company, produced a rival website with a feature called 'Sport Live Data' which linked in with betting companies such as bet365 and Stan James to provide a gambling service based on match data. Football Dataco brought proceedings in the English courts arguing that Sportradar had copied data from Football Live in producing its Sport Live Data feature.
Following a request from the English courts for a preliminary ruling, the ECJ held that where an internet user requested data of the Sportradar website, the consequent sending of that data constituted an act of re-utilisation within the meaning of Article 7 of the Database Directive (96/9/EC). Further, that the infringing act occurs in the place where the internet user downloads the data, provided there was an intention to target users in that member state.
Given Sportradar had its servers in Germany and Austria with many of its users in the UK, the ECJ held that when deciding if re-utilisation of data occurs where the information has been received the national court should consider whether or not by making the data available to users in a particular country the sender was demonstrating an intention to target users in that member state. In particular the court had to decide whether or not the sender had actual or constructive knowledge that a particular member state would be the ultimate destination for the data. The ECJ suggested that factors the English court could consider when forming its decision include:
- The language the data was presented in and whether this differed from the language most commonly used in the member state Sportradar was based in;
- The agreements made by Sportradar to host betting services from UK companies which targeted UK customers;
- Sportradar's projections for revenue generated from UK operations;
- Was data itself of interest to UK based customers.
The decision indicates that for database right infringement claims to be successful in a particular EU member state, the database right holder will have to show, amongst other things, that the infringer had some intention of targeting users there.