In Playup Interactive Entertainment (UK) PTY Ltd v Givemefootball Ltd [2011] EWHC 1980 (Comm), Mr Justice Walker had to deal with a dispute arising from a sponsorship agreement relating to the PFA Fans’ Awards. But, in addition to the standard issues arising as to interpretation and the measurement of loss, the case focuses on detailed issues of great relevance to online marketing, such as the nature of opt-ins and whether the harvested ‘avid football fans’ really met the contract criteria. Under the sponsorship agreement, the claimant (Playup) was required to pay £1.034 million in four tranches. In return, the defendant (Givemefootball) was required to provide ‘the Sponsor’ with a range of marketing benefits. Among these benefits were ‘the data programme rights’ – monthly programmes of at least 1m marketing e-mails and bimonthly programmes of at least 250,000 SMS messages. In the second half of 2008 disputes arose about the data programme rights. In late 2008 PlayUp gave notice of termination of the agreement. At that stage it had paid £692,000 to Givemefootball. It claimed repayments and damages for breach. Givemefootball denied any breach, and counterclaimed for the remaining instalments.
In his judgment, which can be read in full here, Walker J stated that one issue was how close a link there had to be between Givemefootball and programme recipients and a second concerned the telephone numbers of SMS programme recipients.
PlayUp said it was not permissible for Givemefootball to use what it called ‘bought-in data’ as a source for the selection of programme recipients – the agreement’s references to ‘opted-in recipients’ were to those opting-in through the official PFA web site, something which had not occurred in the case of bought-in data. Givemefootball’s contention was that the key word in the agreement was ‘targeted’; this indicated ‘the objective intention that the emails and SMS messages had to be capable of being sent to people with known sporting interests, particularly (but not exclusively) in football’ and not that they had to be opted-in via the official PFA site.
As to the requirement under the agreement that SMS messages be ‘sent to the Mobile Devices of at least 250,000 opted-in recipients’, PlayUp contended that if a number used for the purposes of the SMS programme did not actually correspond to a mobile device of an opted-in recipient (eg because the number was simply fictitious), then a message sent to it cannot, in any ordinary sense, be described as having been ‘sent’. Givemefootball responded that it did not promise to deliver messages: it promised merely to send them.
The particular facts and the terms of the agreement are key and no thrilling principles of law emerge from the case. Crucially, Walker J was unimpressed by some of Givemefootball’s witnesses, to the point of suggesting that two were deliberately dishonest (‘Moreover it was foolishly dishonest, for the dishonesty was bound to be exposed.’). However, the examination of the process in the judgment and the clarification of some common terms (especially ‘targeted’ and opt-in’) do bear close examination.
