The Full Federal Court in Australia has dismissed an appeal by the often controversial secondary ticketing website Viagogo which was trying to overturn an earlier ruling that it breached the country’s consumer rights laws and should therefore pay a penalty of AUS$7 million.

In their ruling issued yesterday, the appeal judges stated: “Notwithstanding that Viagogo is not happy with the result, it has failed to establish error on the part of the primary judge in the application of the relevant legal principles or in fact-finding. The appeal on liability must [therefore] be dismissed”.

The legal action against Viagogo in Australia was pursued by the Australian Competition & Consumer Commission. The main issues identified by the Australian regulator regarding Viagogo’s operations pretty much mirrored the issues raised by campaigners and regulators in other countries.

That included the resale site’s frequent use of the word ‘official’, when it was – in fact – not an official seller of any tickets at all. Also, Viagogo’s practice of suggesting that tickets were running out for a show, when statements about the scarcity of tickets only ever related to the number of touted tickets being sold on its own platform. And the secondary ticketing firm’s substantial but often hidden fees.

The Federal Court first ruled back in 2019 that those practices were in violation of Australian consumer rights law. The judge hearing the case then subsequently ordered Viagogo to pay the AUS$7 million penalty, noting that the secondary ticketing company’s conduct in this domain had been deliberate and that its misleading claims had been made on “an industrial scale”.

For its part, Viagogo insisted that – by 2019 – it had already made changes to its website that dealt with the concerns the ACCC had raised. It also announced its intent to appeal the judgement, subsequently returning to the appeals division of the Federal Court, aka the Full Court.

But the appeals judges very much concurred with the original judgement. Summarising the conclusions of the appeal judges, the ACCC said yesterday: “The Full Court upheld the finding made in 2019 that Viagogo had falsely represented that it was the ‘official’ seller of tickets to particular events”.

“The Full Court”, it added, “also upheld the finding made by the primary judge that from 1 May 2017 to 26 Jun 2017, Viagogo’s website drew consumers in with a headline price but failed to sufficiently disclose additional fees or specify a single price for tickets, including a 27.6% booking fee which applied to most tickets”.

Welcoming the latest ruling in this case, ACCC Commissioner Liza Carver told reporters: “This case was about bad behaviour by an international ticket reseller that deliberately misled thousands of Australian consumers about the price they would have to pay for tickets and falsely represented that those consumers were purchasing tickets from an official site”.

“Viagogo misled music lovers, sporting fans and other consumers who were hoping to get tickets to a special event”, she added. “Consumers were drawn in by a headline price and were often unaware of the significant fees charged by Viagogo until very late in the booking process when they were already invested in attending the event. Businesses must clearly disclose if they charge additional, unavoidable fees on top of the advertised price”.

Responding to yesterday’s ruling, a Viagogo spokesperson said: “Viagogo is disappointed with the Federal Court’s ruling, but we remain committed to continuing to provide choice for consumers to access tickets and attend events”.

“The ruling concerns language used in some advertisements and the form of the Viagogo website around five years ago”, they added. “It does not reflect our current ticketing platform and the many changes we have made to provide greater transparency for our customers, including providing clearer pricing, ticketing availability and event policy information at all stages of the customer journey”.

“Our first priority continues to be providing people with a safe and secure platform to buy or sell tickets to live performance events they can either no longer attend or missed out on at first release” they went on. “We will continue to focus on providing the best possible experience for customers as we recover from the pandemic, which continues to have a significant impact on the live performance industry around the world”.

Concluding, the spokesperson stated: “A transparent and secure resale market is in the interests of everyone, and we will continue working constructively with the ACCC and other regulators to ensure all Australians are protected by the highest possible consumer standards”.

The ruling in the Australian courts was welcomed by those who have led campaigns against for-profit ticket touting elsewhere in the world. Those campaigners say that the ACCC’s criticisms of Viagogo were well justified, and – despite changes to the secondary ticketing firm’s website in recent years – concerns remain about the way the company operates.

To that end, they reckon, regulators like the ACCC – and commercial entities such as search engines – should continue to monitor the for-profit ticket resale market, and take action against resale sites where consumer rights are still arguably being violated.

Adam Webb of the UK-based anti-touting campaign FanFair said: “Well done Australia. The only surprise is that other countries haven’t followed suit – including the UK. Viagogo’s anti-consumer practices risk delaying the recovery of live music, and I would urge our government to accept recommendations made nine months ago by the Competition & Markets Authority to toughen up the laws around ticket touting”.

Meanwhile, Sam Shemtob from the pan-European anti-touting initiative FEAT added: “Yet again, Viagogo has falsely claimed to be an official reseller, created a false sense of urgency around its listings, hidden its fees and clogged up courts with appeals – and yet again it has ultimately lost. Regulators are waking up to the damage caused by industrial scale ticket touting. It’s about time search engines do the same”.

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