19 April 2019

Online Ticketing and the ACL

In Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544 the Federal Court has found that under the Australian Consumer Law ticket reseller Viagogo AG made false or misleading representations and engaged in conduct liable to mislead the public when reselling entertainment, music and live sport event tickets, in breach of the Australian Consumer Law.

The ACCC comments
The Court found Viagogo misled consumers by claiming tickets to certain events were scarce when the scarcity only referred to the tickets available on its resale platform and didn’t include tickets available elsewhere. 
“Viagogo’s claims misled consumers into buying tickets by including claims like ‘less than 1 per cent tickets remaining’ to create a false sense of urgency,” ACCC Chair Rod Sims said. 
The Court also found that using the word ‘official’ in its online advertisements was misleading. As a result of this, consumers were misled into thinking they were purchasing tickets from an official site, when in fact Viagogo is a ticket resale website. 
“We urge consumers to only buy tickets from authorised sellers, or they risk their tickets being dishonored at the gates or doors,” Mr Sims said. 
The Court also found that from 1 May 2017 to 26 June 2017, Viagogo’s website claims drew consumers in with a headline price but failed to sufficiently disclose additional fees or specify a single price for tickets. The additional fees included a 27.6 per cent booking fee which applied to most tickets.
Yes, a 27.6% fee
“Viagogo was charging extraordinarily high booking fees and many consumers were caught out,” Mr Sims said. 
“Today’s Federal Court decision is a reminder to businesses that consumers must be clearly told that there are additional fees associated with a displayed price.” 
The Court will determine penalties and orders against Viagogo at a later date.
Burley J comments
In section 3.3.2 above I have described the operation of the website. Each of the webpages is rich in information and provides access to additional information by clicking on links available. None of the pages can be seen in its entirety on a single screen of device likely to be used by the ordinary consumer. The consumer is directed to select links that meet his or her desire in terms of ticket acquisition. As one moves through the process, the website encourages, with increasing urgency, the consumer to advance through the acquisition so that the opportunity to acquire the desired tickets is not lost. This process has the effect, if not the design, of distracting the consumer from content that is available (or that might be available by following other links) beyond that which is immediately needed to progress through the site, and corralling him or her towards speedy completion of the purchase. The use of an interactive website is to be contrasted with other media by which goods or services are promoted and sold. In the present case the website serves the function of both promoting the sale of tickets and also enabling a consumer to enter the transaction. The consumer is drawn not only into a marketing web, but also into a transactional web. The site encourages the consumer to commit to a transaction; he or she selects the event of interest, then in the Tickets and Seating Selection Page is invited to choose the desired number of tickets and, once selected, commit (or at least signify an interest in doing so) to “Buy” them for a nominated price. At each stage the consumer is assured that tickets are running short, that time is running out to buy, and that the tickets that they have selected will soon be released to other, competing purchasers. The increasing urges to completion and the “hurry up” messages create such an impression that the consumer is at risk of missing out on tickets, that he or she is likely increasingly to confine attention to only that information necessary to enter details and complete the transaction.
I am unable to accept the submission advanced by viagogo that it is likely that the ordinary consumer would by the time of viewing the Tickets and Seating Selection Page be aware that the seat being sold in a ticket “marketplace” or that accordingly an additional booking fee would be expected. The first premise of this proposition is that adequate notice is provided to the consumer that the viagogo site is in fact one that only facilitates a ticket exchange. The second is that the ordinary consumer would assume, without being told, that a booking fee in the order of 28% of the total ticket price would be levied by the organiser of the exchange. Neither premise is established. 
At this point the ordinary consumer, being reasonably astute to his or her own interests, is unlikely to be aware that viagogo is operating as ticket marketplace, facilitating the re-sale of tickets held by third parties. There is no dispute that prior to engaging with the viagogo website, the ordinary consumer is not likely to be aware of viagogo or its activities. For the reasons set out in [150] above, and addressed below in the immediate context (see [168]), I do not think that the website at the pages prior to the Tickets and Seating Selection Page sufficiently alerts a consumer to that fact. Nor, for the reasons set out below, do I consider that the prior pages alert the consumer to the fact that there will be a significant further charge levied, over and above the price of the ticket. I accept that the ordinary consumer would ordinarily expect to pay a small handling fee. As much was said by Ms Bolding, who expected to pay a fee of between $2 and $8. But the evidence indicates that the viagogo “VAT and Booking Fee” is in the order of an additional 28% added to the price of the ticket. That is a significant impost that was not disclosed at this point. In this regard I consider that the combined effect of the “Buy” button and its placement directly beneath the price on the Tickets and Seating Selection Page amounts to a headline representation of the ticket price. The question then becomes whether or not it has been qualified by material sufficiently drawn to the attention of the consumer to neutralise the effect of that representation; Medical Benefits Fund at [37] (Stone J, Moore and Mansfield JJ agreeing). 
The fact that viagogo adds a VAT and Booking Fee of A$37.50 to the price per ticket is not disclosed until the final Review Page. That notification takes place after the consumer enters his or her name and credit card details, but prior to pressing the “complete” button to finalise the transaction. Although it is perhaps a close run thing, I consider that at this point an ordinary consumer reasonably astute to his or her interests is adequately notified of the charge. 
In this regard the matters to which viagogo draws attention are not sufficient to give notice to the ordinary consumer who (viagogo accepts) is not likely to have heard of viagogo or to know of its activities, that the particular tickets they seek are being offered by a third party who is not viagogo. Nor do they convey notice that viagogo will levy a handsome impost for its services beyond a handling fee. The following further points are relevant to this conclusion:
(1) The Terms and Conditions are not readily apparent on the website. They are to be found via a link at the base of each page in the end section. Navigation of the website to locate and/or acquire tickets does not oblige the user to scroll down to that point, and the link to terms and conditions is in fine print and not prominent. I consider it likely that a not insignificant number of consumers would not locate or click on those conditions prior to reaching the Tickets and Seating Selection Page. If done, the evidence is not clear what would be seen. The evidence of Ms Burke is that by clicking on a link to “Help Centre” on an email received from viagogo after acquiring tickets she was directed to a site from where she could click through to “Terms and Conditions”. She exhibits the pages. For present purposes I infer, as seems likely, that these are the same terms and conditions accessible from the end section. In submissions viagogo draws attention to clauses 1.2, 2.4 – 2.6 and 3.1 – 3.4. These identify that viagogo is a ticket re-seller, and that the price is fixed by the third party owner of the tickets, but make no mention of the fee that viagogo charges for its involvement in the transaction, or what that fee may be. 
(2) The event description on the Event Specific Page does, in the case of the Book of Mormon production, refer to viagogo as a “ticket marketplace” and that one can also “sell tickets”. I address this further in [150(3)] above. In my view this information does not convey to the ordinary consumer that the particular tickets of interest are re-sold by a third party for an additional (and sizeable) handling fee. I note that the reference to a marketplace is absent from the Cat Stevens Event Specific Page. 
(3) The information in the General Notes on the Tickets and Seating Selection Page (see [59] above) does convey that prices are set by sellers and exclude booking and delivery fees in what can only be called the fine print buried in the final bullet point. I do not consider that the ordinary user is likely either to click on the drop-down arrow to see those notes or to absorb the details therein. The heading “General Notes” does not draw attention to the fact that important information relevant to the purchase is present. In the context of the pop-up “hurry up” messages present on the page (as to which see [56] above), I find it unlikely that the ordinary consumer would read those notes. In some versions of the Tickets and Seating Selection Page, the General Notes are displayed without the need to click on an arrow. That difference is, in my view, immaterial given the small font size and the position of the bullet point at the end of the list.