Viagogo agrees changes with UK’s competition regulator

December 2018

CONSUMER LAW: Another day, another court order against Viagogo. The High Court in London has ordered controversial ticket reseller Viagogo to “overhaul” the way it does business. The Competition and Markets Authority had launched legal action against the company in August over concerns it was breaking consumer protection law. The regulator claimed that unlike its competitors, Viagogo had failed to voluntarily comply with the the law. With that case about to arrive in the High Court, Viagogo yesterday committed to make a series of changes to its website to deal with the CMA’s concerns. The court order makes those commitments legally binding.

The Court has confirmed that from January Viagogo must tell buyers which seat they will get and if there is a risk that they will be turned away at the door. The order extends to ensuring Viagogo informs buyers who is selling the ticket, make it easy for people to get their money back when things go wrong, prevent the sale of tickets a seller does not own and may not be able to supply and not  to give misleading information about the availability and popularity of tickets

Viagogo will also be compelled to provide more information about who is selling any one ticket. This is important because it will enable buyers to distinguish between music fans looking to offload a ticket for a show they can no longer attend from the industrial-level touts that account for a majority of the tickets available on the resale sites. Where people tout tickets as a business the buyer has additional consumer rights.

The company has to comply with the court order by mid-January, the same deadline set for other resale sites that have already agreed to change their practices, 

In a statement, CMA chief executive Andrea Coscelli said the court order was a “victory for anyone who decides to buy a ticket through Viagogo. We have been clear throughout our investigation that people who use these resale websites must know key facts before parting with their hard-earned money, including what seat they will get and whether there is a risk they might not actually get into the event at all” adding “Viagogo has agreed to a comprehensive overhaul of its site to ensure it respects the law, just like the other resale sites who have already signed commitments to improve the information they offer and give people a fair deal”.

In a Twitter post, Viagogo described it as a “groundbreaking settlement”.  Viagogo insisted that the commitments “reflect a desire to ensure that the consumer has as much information as possible before making their purchase decision”. Meanwhile a spokesperson was quoted as saying “we are pleased that we have been able to work closely with the CMA to come to an agreement that provides even greater transparency to consumers”.

Adam Webb of the anti-touting FanFair Campaign commented “While the UK’s ticket resale market undergoes a long-awaited transformation, Viagogo has effectively become a rogue operator” and “That it’s required a court order to force their compliance with existing legislation is nothing short of extraordinary. Effectively, it means Viagogo have been given until mid-January to overhaul their bad practices. If they fail to do that, they should feel the full force of the law”.

Digital minister Margot James described the court order as a “great victory for consumers” adding “Government is committed to cracking down on unacceptable behaviour in the secondary ticketing market. We have banned the use of ticket bots and are working with industry to find solutions that will kill off crooked practices once and for all.”

Gig-goers or bootleggers? Are phone recordings an irritant or potential copyright infringement?

COPYRIGHT: “Go to any stadium gig and you’ll be met with a forest of arms holding up mobiles and blocking lines of sight, so people behind feel irritated,” says Katie McPhee, Head of Marketing at Eventbrite who commissioned a new report by ComRes – 1,031 adults who attended a live event in the past twelve months were interviewed.  The research found that:

• 70% found it irritating when others constantly take pictures or videos during live performances;

• 69% would support more than minimal action to minimise the disruption;

• 65% said using their phones to capture images could make them feel as though they are missing out on the live experience;

• Nearly half (49%) took photos and videos with a clear majority (62% each) among those aged 18-24 and 35-44;

• A large majority (81%) understood why an artist might not like videoing and photographing at the event;

• A majority (69%) would support measures to reduce filming and photographing with phones.

Artists, including Adele, Alicia Keys, Nick Cave, Kendrick Lamar and the late Prince have asked fans to refrain from using their phones during the performance. Rock bands White Stripes and Guns n’ Roses have famously banned mobile phones at their gigs. Of the surveyed industry professionals, four out of five had concerns about people recording pictures and videos during performances, but a majority (63%) had no measures in place to manage mobile phone use. 

The main concern for an artist whose live performance is captured on audio and video is ‘bootlegging’ which is unlawful. Other legal issues (under British law) which may arise, are acts which might constitute an infringement of: 

1. copyright in the musical composition and the lyrics; 

2. copyright (the performer’s right) in the performance; 

3. trademarks owned by the band collectively and individually; 

4. image rights (although this is not, as yet, a clear right in the UK);

5. merchandising rights;

6. contractual rights granted/restricted in the terms and conditions of entry to the venue reinforced by signage; 

7. licences granted by collective societies (such as PPL and PRS for Music) to the venue.

On the face of it, copyright law grants ownership of the concert audio and video to the audience member who made the recording, despite it having been recorded without the performers’ permission; But would a court follow that logic? And ownership gives the exclusive right to copy, communicate and distribute the recording to the public.  Thus, footage and clips posted on social media and YouTube can only be taken down where there is a legal basis for doing so.  For example, copyright exceptions may apply where permission is not required such as fair use where the recording is for criticism, review and news reporting.  On the other hand, the songwriter as owner of the copyright in the composition and lyrics can claim that the person recording on their phone failed to obtain a licence to do so (and that MAY be the band who have been filmed – but not necessarily so) and may be in breach of other rights, such as each performer’s right.

Currently, one of the legal mechanisms employed to take down unauthorised videos posted on the internet require the filing of a notice of infringement with the relevant service provider(s). In the USA, federal anti-bootlegging legislation exists and for copyright infringement the Digital Millennium Copyright Act (DMCA) provides a safe harbour for ISPs if they act promptly to block and/or remove infringing material on receipt of a notice by the rights holder.  In the EU, Article 14 of the E-Commerce Directive offers the same protection and the proposed Article 13 of the EU Copyright Directive will require service providers to implement content matching technology (similar to YouTube’s Content ID) in order to identify and prevent the availability of unlicensed works, acting expeditiously to remove them and prevent their future availability.  

However, prevention may be better than a legal remedy by implementing technical solutions to manage mobile phone use.  Jack White of the White Stripes and the Lumineers have employed the use of phone pouches at their concerts.  Attendees’ phones are put into pouches which are auto-locked when they enter the phone free zone within the venue, and auto-unlocked when they step outside.  Apple has also patented a process which prevents a phone from videoing through the use of an infra-red signal which is detected by the phone, which then shuts down its video features.

George Chin LLB(Hons), LLM (Entertainment Law)


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