Horseracing and gambling have gone hand-in-hand for many years. It is a lucrative market for those who provide odds, information, and bookmakers. Indeed, in 2020, the turnover for off-course horse betting was roughly 4 billion pounds. It is no wonder, therefore, that those who handle and distribute this data guard it jealously, as the case of Racing Partnership Ltd and others v Done Brothers (Cash Betting) Ltd and others  EWHC 1156 (Ch) perfectly exemplifies.
The factual background of Racing Partnership Ltd and others v Done Brothers (Cash Betting) Ltd & ors
The Racing Partnership, the first Claimants (‘C1’), produced live betting and horseracing data collated at racecourses owned by the second Claimants (‘C2’), Arena Leisure Limited. The data comprised two elements. The first was betting prices, calculated by an algorithm fed by fixed odds being offered by on-course bookmakers. This information is, of course, vital for off-course bookmakers. These prices are produced 8-10 minutes before the start of each race. The second type of data was raceday data: information specific to the racecourse on the day of the race (weather, jockeys, stewards’ inquiries, results, etc.)
One of the Defendants, SIS also supplied information to off-course bookmakers, and had an agreement with the Tote (another of the Defendants), under which the Tote delivered raceday data to SIS. C1 and C2 brought proceedings in the High Court against the defendants for infringements of their rights in respect of horseracing data and conspiracy to injure by unlawful means. According to the claimants, SIS had conspired with LC, Betfred and the Tote to injure C1 by unlawful means
The unlawful means were:
- Copyright infringement;
- Breach of C1’s database right;
- Breach of contract; and
- Breach of confidence.
The claimants also brought a direct claim for breach of confidence by the Tote (and by SIS) arising out of the Tote’s collection and distribution to SIS of the raceday data.
In order for a claim of copyright infringement to succeed, there must first be established a copyright. For this to exist, there must be work of sufficient skill, labour, or judgment as to justify it. In this case, Mr Justice Zacaroli arrived at the conclusion that, although copyright might exist in the list of names of on-course bookmakers selected for the algorithm, the actual process of arriving at betting prices was “pure routine work”, incapable of being of sufficient skill, labour, or judgment for a copyright to subsist.
Sui generis database rights
A database right subsists in a database “if there has been a substantial investment in obtaining, verifying or presenting the contents of the database”. SIS accepted that C1 was the owner of a database right, but denied infringing it. However, Zacaroli J agreed with SIS in this case that they merely consulted the database, and didn’t extract or re-utilise the data contained therein. “Extraction” means the “permanent or temporary transfer of [the] contents [of the database] to another medium”, and “Re-utilisation” means “making those contents available to the public by any means”, and as SIS had done neither, the claim for database right infringement failed.
Breach of contract
This claim related to C2 and the Tote. C2 contended that it allowed the Tote on-course solely for the purposes of collecting and distributing data for pool betting, and not for any other purposes. The breach of contract claim was based on two allegations:
- That the Tote collected data which was not required for pool betting; and
- That it distributed the data it was permitted to collect to SIS for non-pool betting purposes.
However, the Tote’s presence on racecourses was originally pursuant to a statutory right and there was no evidence of any agreement which regulated its activities in respect of pool betting on C2’s racecourses. The Tote was therefore not contractually bound to comply with C2’s terms and conditions of entry to its racecourses, which prohibited media attendees from exploiting data coverage of races on their own behalf. Accordingly, there was no contractual restriction on the Tote feeding raceday data to SIS.
Breach of confidence
The test for breach of confidence is a three-part test:
- The information must have the necessary quality of confidence;
- The information must have been imparted in circumstances importing an obligation of confidence; and
- There must be an unauthorised use by the confidant to the detriment of the rights holder.
Zacaroli J came to the conclusion that, due to the significant commercial value of the information, even though it was only for a short period of time, there was commercial confidentiality. He also concluded that a reasonable person in the Tote’s position, appreciating that the information was acquired by it for the purposes of pool betting only, would also have appreciated that it was acquired in circumstances importing an obligation of confidence, so the second limb was met. However, he also concluded that SIS neither actually knew that, nor turned a blind eye to whether, the Tote was unable lawfully to provide Raceday Data.
In terms of the unauthorised use, Zacaroli J held that the data provided by the Tote to SIS did extend beyond that which it collected for pool betting purposes.
Having established the breach of confidence, the crucial element to the conspiracy claim overall became liability under the tort of unlawful means conspiracy, where the unlawful means consisted of breach of confidence, depended upon knowledge (or blind-eye knowledge) that the claimant’s rights of confidence were infringed. As mentioned above, Although a reasonable person in SIS’s position would have appreciated that the Tote acquired the information in circumstances of confidence that precluded its use for fixed-odds betting, it neither actually knew that, nor turned a blind eye to whether, the Tote was unable lawfully to provide it with raceday data. Therefore, it did not have the requisite knowledge of unlawfulness consisting of breach of confidence for the purposes of the claim in conspiracy.
As such, overall, the claim failed.
Link to judgment: https://www.bailii.org/ew/cases/EWHC/Ch/2019/1156.html#para49