Company breached contract by sending mis-targeted marketing material without consent, High Court rules

Mr Justice Walker ruled that Givemefootball (GMF) had not honoured its obligations in a contract it had signed with Playup Interactive Entertainment, and that Playup had been entitled to break out of the contract as a result of GMF's contractual failures. The judge said that not all recipients of the marketing communications had been the intended target of the material and that not all had consented to receiving it.

A party is entitled to terminate a contract and sue for damages if the other party in the contract makes a sufficiently fundamental breach of the agreement between them. This is often referred to as a repudiatory breach.

Playup had signed a sponsorship agreement with GMF to sponsor the Professional Footballers' Association (PFA) Fans Awards. GMF hosts the PFA's website. The agreement detailed that, in return for its sponsorship, GMF would send out "targeted" Playup marketing material via emails and text messages to a certain number of GMF's "opted in recipients", the ruling said.

The agreement also permitted GMF to "license" to PlayUp the use of personal data it "owned or controlled", and contained a guarantee from GMF that any recipients of the marketing communications had all given prior consent to receiving the material.

GMF sent the marketing material to individuals on its database who had consented to receiving direct marketing material, but supplemented this number by sending the material to those with sporting interests listed on a database it had "bought in" from another company, the ruling said.

After finding out that GMF had sent the material to individuals not on its database in order to fulfil the target number of recipients agreed in the contract, Playup terminated the contract and sued GMF for breach of contract.

GMF denied the breach and counter-claimed that Playup should have to pay up the sponsorship money it had not already paid. The High Court ruled in Playup's favour.

"I conclude that GMF failed to perform its obligations in relation to the data programme rights, that PlayUp was entitled to terminate the Sponsorship Agreement, that PlayUp is entitled to payment of £340,251.14 plus VAT under [the terms] of the Sponsorship Agreement, and that PlayUp is entitled to damages in the amount of £53,000," Mr Justice Walker said in his ruling.

"GMF's counterclaim fails because PlayUp was entitled to terminate the Agreement, and accordingly that counterclaim must be dismissed," the judge said.

PlayUp successfully argued that the "targeted" marketing campaign had to be aimed at those on GMF's direct marketing database. GMF had argued that the meaning of "targeted" should have been interpreted in relation to the sporting interests of all the "data subjects".

"The agreement involved payment by PlayUp of substantial sums of money, in return for precisely defined benefits gained by association with the Awards," the judge said.

"True, PlayUp had commercial interests beyond football. That mere fact gives no basis for thinking that GMF could meet its obligation to provide these precisely defined benefits by supplying data which had nothing to do with the Awards. Thus the position is that while GMF accepts that the Sponsorship Agreement contemplated some limitation on who might be a programme recipient, the limitation GMF suggests runs counter to the essential purpose of that agreement: access to benefits associated with the Awards," he said.

PlayUp said that GMF had failed to obtain consent from those on the "bought in" database because they had not specifically used the PFA website to consent. GMF obtained consent from users of the PFA website in order to send the marketing material. It said that those on the "bought in" database had also given their consent because they had agreed to receive direct marketing from the company GMF had licensed the use of the data from. The judge disagreed.