The battle over secondary ticketing goes on

May 2020

CONSUMER: On the back of successful moves to prohibit Viagogo from re-selling Rammstien and Ed Sheeran concert tickets in Germany, the German promoters’ association BDKV has won a legal victory against Ticketbande, a leading secondary ticketing site, securing a judgment that prevents its listing tickets where the resale of those tickets has been prohibited by the promoter.  Ticketbande is one of three main secondary ticketing platforms along with StubHub and Viagogo. Eventim owns the price-capped fanSALE platform.

The BDKV (Federal Association of the Concert and Event Industry) launched its Nein zum Ticketschwarzmarkt (No to the Ticket Black Market) campaign in August, pushing for a price cap of 25% above face value for secondary market tickets.

In its 21st January ruling, the regional court of Hanover agreed that any further mark-ups made by the re-seller were anti-competitive, and forbade Ticketbande from reselling tickets where the T&Cs prohibit such a re-sale and where there is a named ticket. The Court ruled that Ticketbande must not list tickets when any one of three scenarios apply: (i) the terms and conditions on the original ticket prohibit resale (ii) when tickets have a box for the buyer’s name (iii) if a seller marks up the ticket by more 25% of face value. The court additionally rejected Ticketbande’s protests that the partial resale ban would be ineffective at stopping unauthorised ticket touting.

“The verdict finally eliminates a crucial grey area in ticket sales,” says Johannes Ulbricht (pictured), BDKV’s lawyer. “It brings event organisers a great step further in the fight against the commercial secondary market ticketing trade” adding  “It is also crucial that the secondary market ticket platform is fully liable in the event of a breach of the resale prohibition, and cannot claim a fault on the seller’s part,” adds Dr Ulbricht

In a statement to Pollstar, Viagogo responded to the ruling by saying that “price caps don’t work.”

In the United Kingdom, Viagogo is now claiming to be fully compliant with consumer rights law, but the UK’s Competition & Markets Authority has said it will investigate and may challenge this position as it has ‘serious concerns’.  In a statement the CMA said: “Following initial checks, the CMA has serious concerns that Viagogo has not complied with important aspects of the court order we secured against them”. Reacting to the new CMA statement Reacting to the new CMA statement, Campaign Manager of anti-touting group the FanFair Alliance, Adam Webb, said in a statement: “Last week Viagogo passed a strict deadline to comply with a court order and overhaul its business. True to form, we have seen little evidence of change. In fact, our concerns with how this website operates have only intensified, and while we welcome today’s update it is now vital that the CMA act quickly and decisively to enforce the law. Viagogo has run out of road”.

And CMU Daily reports that Viagogo is “hard at work opposing new anti-ticket-touting legislation in Ireland” noting that new documents obtained by the Irish Times show that the secondary ticketing firm is now arguing that proposed new rules would contravene the Irish constitution and EU law. On top of this, Maria Byrne, the Senator for Limerick, said she would oppose the new anti-touting laws because Viagogo employs about 150 people in the city – a local workforce since increased to around 275. One of the politicians behind the bill to restrict the sale of tickets for profit, Noel Rock, tells the Irish Times that efforts to get the proposals passed into law have moved at a “glacial” pace due to heavy lobbying from the secondary ticketing firm.

A legal submission from Viagogo obtained by the Irish Times reveals other arguments put forward by the resale site. It reckons that, if it became law, the resale restriction would be “extremely vulnerable to challenge by reason of its likely infringement on constitutional rights granted by [Ireland’s Constitution]” and “would run contrary to EU law”. CMU says that Viagogo has also argued that proposed new powers for police to seize tickets believed to have been resold in contravention of the new law would undermine the right to innocence until being proven guilty. Not only that, it would be in breach of constitutional rights to property ownership.

And finally on secondary ticketing, both Viagogo and StubHub have reacted to the launch of FEAT, the Face-value European Alliance for Ticketing, the Europe wide anti-ticket touting association which launched at tthe Eurosonic Noorderslag conference and festival in Groningen.  FEAT is backed by promoters, agents and managers in a number of European countries including the Netherlands, Belgium, Switzerland, France, Spain, Germany, Denmark and Ireland.  StubHub’s said it was “concerned by the rhetoric of the newly formed Face-value European Alliance for Ticketing (FEAT) and its potential to harm consumers, especially as we observe the trend of rising average face-value prices”. Scumeck Sabottka of Germany’s MCT, one of the founders of FEAT said “While we agree on the importance of a secure environment for fans to resell tickets when they can no longer attend a gig, we disagree on the need for this to involve price-hiking to the value of €8bn annually” referencing the estimated cost to European consumers for tickets resold above face value adding “FEAT advocates for transparency in ticketing, [to which] our website attests” and telling IQ magazine ““Both artists and fans want face value resale. We note the closure of Seatwave and Get Me In! in the UK, the success of face-value resale platforms like Twickets in the UK and Spain, and the fact that countries like Ireland are moving towards a face value resale-only policy. We hope StubHub will catch this wave and work with organisations like ours towards a resale ecosystem that is truly fan-first.”

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