Playup Interactive Entertainment (UK) PTY Ltd v Givemefootball Ltd (2011)
The defendant was in repudiatory breach of a sponsorship agreement by failing to deliver e-mail and text message marketing programmes to the promised number of recipients.
The claimant (P) claimed repayment of certain sums under a sponsorship agreement with the defendant (G) and damages for breach of contract, and G counterclaimed for sums said to be due under the agreement. P operated an interactive gaming business over mobile phones and the internet. G hosted several websites including the official website of the Professional Footballers' Association (PFA). G invited sponsorship for the PFA's fans awards which enabled football fans to vote online for their player of the month and player of the year. The parties then entered into the sponsorship agreement which involved G providing targeted marketing opportunities consisting of the sending of 12 e-mail programmes to the e-mail addresses of at least one million opted-in recipients, and six text message programmes to the mobile devices of at least 250,000 opted-in recipients. P's case was that G used "bought-in data" as a source for the selection of programme recipients, meaning data which was supplied by the data subject not to G but to another entity and provided by that entity to G. P complained that G's use of bought-in data did not comply with the sponsorship agreement. It also complained of breach of the text message programme requirements.
(1) G conceded that there had to be some limitation on who might be a programme recipient and that was an acknowledgement of commercial reality. G's interpretation of the word "targeted" as relating to the sporting interests of the data subjects, and not their connection with G, was contrary to the essential purpose of the agreement, which was access to benefits associated with the PFA fan awards (see paras 55-62 of judgment). (2) P was correct in its contention that "opted-in recipients" referred to people who had interacted with the PFA's official website so as to give consent to the receipt of marketing (para.77). (3) The requirement for the data subjects to have "provided the Company with prior notifications of their consent to receiving direct marketing from the Sponsor" was a requirement for consent notifications provided specifically to G (paras 78-86). (4) It followed that in order to meet the requirements concerning programme recipients, it was necessary for the recipient to be a person who had opted in using the official website, and given a prior consent notification specifically to G and consented to receive direct marketing from a class of which P was a member (para.97). (5) In relation to text messages G had to send messages to numbers given by opted-in recipients, but that alone did not fulfil its obligation. It would only do that if 250,000 of those messages were sent to actual mobile devices as defined (para.92). (6) G's evidence about the databases used in performance of the agreement was not to be believed. E-mail programmes were delivered by G to at most 260,000 qualifying recipients rather than the one million promised, and at most 39,450 qualifying text message recipients rather than the 250,000 promised. G's failure to provide what P contracted for as regards e-mail recipients and text message recipients was so significant as to amount to a repudiatory breach at common law. Under the agreement, the use of bought-in data by G constituted a material breach. The commercial consequences of both were significant. P was entitled to repayment of the relevant proportion of the sponsorship fee. It was also entitled to damages calculated on the basis that by number of recipients G had supplied 24 per cent of the amount promised. In order to reflect the other benefits that P had received under the agreement, it was entitled to 20 per cent of the difference between what it had paid under the agreement and 24 per cent of that amount (paras 213-218, 254, 264-267, 270-275).
Judgment for claimant, counterclaim dismissed
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