Playup interactive gaming paid £1m for various sponsor benefits linked to the PFA’s “Player of the Month” etc awards. “Targeted marketing opportunities” for PlayUp included email and SMS to be sent to “opted-in recipients”. What this meant was crucial in the ensuing litigation, as Stephen Groom’s “bullet report” reveals.
Topic: Direct marketing
Who: Playup Interactive Entertainment (UK) Pty Ltd ("PU") vs Givemefootball Ltd ("GMF")
When: July 2011
Where: Queen's Bench Division of the High Court, London
Law stated as at: 5 September 2011
What happened:
- GMF hosts the PFA's website "Givemefootball" where fans vote for their favourite players to receive PFA Fan Awards
- PU runs a digital gaming business where punters bet on sports events by mobile/pc
- PU pays GMF £1m for sole & exclusive right to be sponsor of PFA Fan Awards
- For the fee, GMF also agrees to "provide or procure targeted marketing opportunities and benefits to [PU]" including the following to be sent to "opted-in recipients who are contained in databases owned or controlled by [GMF]"
- 12 email shot programmes to be sent to email addresses of at least 1m
- 6 SMS programmes to be sent to mobiles of at least 250k
- GMF warranted that all campaign recipients "have provided [GMF] with prior notifications of their consent to receiving [DM] from [PU]."
- Email and SMS campaign results not good
- It turned out that GMF's own opted-in fans numbered:
- 260k email addresses instead of 1m
- 39,450 mobile nos instead of 250k
- GMF bought in 3rd p. lists to make up the numbers
- Also query were all SMSs actually received?
- PU terminated for repudiatory breach and sued for repayment of £340k + damages
The Verdict
- Essential purpose of agreement was to give PU access to commercial opportunities associated with the PFA Fans Awards
- This + "targeted marketing opportunity" wording meant that "opted-in recipients" could only be those who had opted in via the GMF website, NOT data bought in from 3rd parties
- As PU didn't get exclusive rights in the 3rd p data, this was inconsistent with "sole and exclusive rights" grant
- Databases "owned or controlled" by GMF did not extend to bought-in lists
- "Sent to mobile devices" did not mean guaranteed delivery, but GMF must be able to show that messages were sent to actual mobile devices
- The consent warranty (all campaign recipients have provided [GMF] with prior notifications of their consent to receiving [DM] from [PU]) meant consent must have been
- provided direct to GMF not a 3rd party and
- to receive DM from PU or a class of which PU was a member
- GMF ordered to pay PU £393,251.14 plus costs
Why this matters:
This judgment focuses on a number of areas of key importance to marketers which to this author's knowledge have never before been considered in such depth by the English High Court.
The judgment is first instance of course and may be appealed, and inevitably there should be caution in regarding a court's finding on specific facts as henceforth Holy Writ on any particular issue.
However, the following points suggest themselves:
- to avoid future misunderstandings and potential dispute, any use in contracts of "opted-in" to describe leads or prospects to be supplied as part of deliverables should be accompanied by more detail as to precisely what this means in context, for instance "opted-in" to what exactly?;
- if an advertiser wants an SMS campaign provider to ensure that the SMSs are actually delivered to the mobiles in question, then more specific wording will be needed in the contract than "SMS programmes to be sent to mobiles of at least X recipients";
- ESPs who want to be able to include contact details that have been bought in from third parties when fulfilling a contractual commitment to send a "targeted" digital campaign to "opted-in" recipients should ensure that the contract expressly allows them to do this;
- an obligation to use only lists "owned or controlled" by the campaign provider is unlikely to allow the provider to use bought in third party lists in which they have only non-exclusive rights.
