Over the last year or so a number of regulatory authorities have gone after Viagogo, the now controversial secondary ticket resale platform based in Switzerland, over complaints from consumers. Complaints include the use of misleading statements referring to the availability of tickets and the failure to identify seat numbers and seller identities, and notably, the UK Competition and Markets Authority and the Australian Competition & Consumer Commission have filed legal complaints against the Swiss company.
In August, last year, it was the turn of New Zealand’s Commerce Commission (Commission), at the time Complete Music Update reported that the Commission was seeking “declarations that Viagogo has breached the [Fair Trading Act], an injunction restraining it from further breaches and corrective advertising orders”. Reference was made to the use of words such as ‘official’, ‘guarantee’ and ‘limited’ when Viagogo was not ‘official’, refunds were not ‘guaranteed’ and tickets were not ‘limited’.
Not stopping there, the Commission also referred to an unfair contract term in that any consumer disputes against Viagogo must be heard under Swiss law in Swiss Courts, whereas on the other hand, Viagogo is free to take action against consumers in a jurisdiction of its choosing.
Whilst these substantive arguments are yet to be heard in New Zealand’s High Court, the Commission “sought an interim injunction to prohibit website representations by Viagogo which the Commission alleges are misleading.”
Due to the fact that Viagogo is a Swiss company and the Commission had failed to serve proceedings in Switzerland against Viagogo, the High Court ruled that it could not grant the interim injunction. It should be noted that Viagogo did not make the service issue any easier for the Commission by refusing to waive formal service.
On the issue of the interim injunction High Court Judge, Justice Patricia Courtney, explained that “Viagogo is aware of the proceedings and its New Zealand solicitors have been provided with copies of the documents but formal service in Switzerland will, apparently, take some six months.” In the hearing, Viagogo’s lawyer stated that it intends, once served, to file an appearance and objection to jurisdiction.
The Commission argued that under the Fair Trading Act and, in the absence of any objection to jurisdiction actually having been filed, there is no barrier to the Court determining the application.
Justice Patricia Courtney, in her succinct Judgment, ruled that the High Court did not have jurisdiction over Viagogo and “The problem for the Commission is not whether an objection to jurisdiction has been filed or merely been intimated, but the fact that the defendant has not yet been served.”
Commission Chairman, Dr Mark Berry, said “We knew this was not an easy course but we had hoped to get interim orders to protect New Zealand consumers until we could have the Court hear our substantive case against Viagogo. Our focus remains on preparing for the main hearing against Viagogo.”
Complete Music Updates has reported that Viagogo was treating the Commission’s failure to obtain the injunction as a ‘significant legal victory’ and “For over a decade, millions of customers have been successfully using Viagogo, which is why we remain committed to providing a secure platform for people to sell as well as buy sport, music and entertainment tickets to events in New Zealand and all over the world”.
Ultimately, cases are often won or lost by way of procedural issues and lack of jurisdiction is probably the god father of all defences. Whilst Viagogo may have ‘won’ the round it certainly does not negate the fact that the battle is not over. The Commission has gone some way to inform New Zealand consumers of Viagogo’s practices and who knows, maybe the Commission’s failure to obtain injunctive relief may have spread the word further.
by Samuel O’Toole (www.lawditmusic.co.uk)