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Viagogo sues Ed Sheeran promoter over anti-touting efforts

By | Published on Wednesday 5 September 2018


Having finally complied with the Advertising Standards Authority’s demands on how to present pricing information, Viagogo risked going into today’s Parliamentary debate on secondary ticketing with one or two less haters in the room. And that would never do for a company that has put so much effort into building a corporate brand that truly stands for the sentiment of “fuck-you-all-you-fucking-fuckers”. How best to re-up the hate without risking being kicked off Google search? I know, let’s sue Ed Sheeran!

So, yes, secondary ticketing website Viagogo has gone legal over Ed Sheeran’s decision to cancel thousands of touted tickets on his recent tour. That anti-tout strategy meant that many fans who had bought tickets from an unofficial reseller had to buy a new ticket on the night of the show and then claim back what they’d paid for the original touted ticket from their secondary ticketing platform of choice.

Given Sheeran’s team had persuaded eBay’s StubHub and Live Nation companies Seatwave and Get Me In to not list tickets for his shows, the chances are the platform having to process that refund was Viagogo. Sheeran’s promoter Kilimanjaro Live – which is actually the entity being sued here – earlier this year confirmed that thousands of tickets had been reissued in this way. At the time Viagogo, employing its usual wall of silence, didn’t comment.

However, yesterday it had its dormant-for-years PR department set up a Twitter account to comment on the whole thing in quite some detail and without pulling any punches. It said that Kilimanjaro boss “Stuart Galbraith duped Ed Sheeran fans by confiscating thousands of genuine tickets at the gate, forcing fans to buy new tickets and pocketing millions of pounds in duplicate sales”. As a result, it said, it was now suing the promoter “for defrauding thousands of fans out of several million pounds on Ed Sheeran’s recent tour”.

At the heart of Viagogo’s complaint is a question frequently posed in the early days of the online touting debate: what is a ticket? Is it a commodity that, in our lovely free market economy, can be bought and sold for profit without interference from either the state or the original creator of the commodity? Or is it, in fact, a contract between the buyer and the concert promoter, subject to any terms and conditions in said contract?

The live industry is pretty adamant that it’s the latter. And if one of the terms of the contract says that the agreement is non-transferable and that any attempt to transfer it to another party will result in the contract being terminated, then the promoter has a legal right to cancel any ticket that has been resold without its permission.

The UK Consumer Rights Act 2015, which includes some regulation of the ticket resale market, specifically allows this to happen providing a term of that kind is included. It says that “an organiser of [an] event must not cancel [a] ticket merely because the seller has re-sold the ticket or offered it for re-sale UNLESS a term of the original contract for the sale of the ticket provided for its cancellation if it was re-sold by the buyer under that contract”.

As the anti-touting movement has gained new momentum in recent years, an increasing number of promoters of big name artists have been enforcing this legal right to cancel touted tickets. In order to reduce the negative impact on fans who bought said touted tickets – the identities of whom are unknown to the promoter – usually cancelled tickets aren’t resold, but instead put aside. This means that on the night of the show the fan can buy a new ticket at face value and then reclaim what they paid for the original touted ticket – the resale sites usually offering buyers a guaranteed refund if they are refused entry to a show.

Of course, in order to cancel touted tickets, a promoter needs to know which tickets have been resold by a tout, which can be tricky. Except, the aforementioned Consumer Rights Act says that resellers of tickets – when putting a ticket up for sale for a show with numbered seating – must provide the buyer with “the number, letter or other distinguishing mark of the seat” linked to the ticket “before the buyer is bound by the contract for the sale of the ticket”. Which basically means including seat number when listing a ticket for resale.

Where resellers and resale sites have complied with that rule, promoters can identify specific touted tickets as they are put on sale online and cancel them before the show. Although not every reseller and resale site has complied with that rule.

Interestingly, in its statement yesterday, Viagogo said it was impossible for Kilimanjaro to cancel touted tickets to the Sheeran shows before the gig, because they were “not able to identify and cancel tickets on the Viagogo platform”. Which is seemingly an outright admission that Viagogo and its sellers are in breach of UK consumer rights law.

It’s for that reason, the resale firm alleges, that Kilimanjaro set up Victims Of Viagogo booths at Sheeran’s shows. This meant it was the fans on the night who were revealing that they were in possession of touted tickets, allowing the promoter to then cancel said tickets. Had fans ignored the Victims Of Viagogo signs – the company claims – their tickets would actually have got them into the venue. Indeed, Viagogo insists that the vast majority of fans in possession of a touted ticket did get into the show without any problems.

A spokesperson for the secondary ticketing company insisted: “All tickets on Viagogo are authentic. Stuart Galbraith set up fake Viagogo booths at venues and conned our customers into believing that their tickets wouldn’t work. He confiscated their legitimate tickets and pocketed millions of pounds by forcing fans to buy new ones”.

Of course, under the Consumer Rights Act, Kilimanjaro was in its rights to cancel those legitimate tickets and – by definition – as soon as it had done so they would cease to be legitimate. If the cancellation wasn’t actually occurring until the moment the fan rocked up at the Victim’s Of Viagogo desk, that’s because Viagogo and the touts that use its platform were likely in breach of British consumer rights law.

Also, while fans would be inconvenienced on the night (and all the more so while navigating Viagogo’s notoriously tricky refunds system), they’d ultimately be financially better off, having been sold a new ticket at face value, compared to the hiked-up price they had almost certainly paid for their touted ticket. The tout would be the biggest loser, having shelled out for the original ticket that was cancelled, while Viagogo would lose its fees on the sale.

It is, however, true that Sheeran and Kilimanjaro would have been paid twice for the ticket. Though the live firm incurred the cost of implementing its anti-touting strategy and manning the Victim Of Viagogo booths.

At the conclusion of its statement yesterday, Viagogo seemed keen to stress that its beef wasn’t with Sheeran himself but with Kilimanjaro, one of three companies he worked with on his recent world tour. Actually, throughout its tweeted missive, Viagogo seemed pretty keen to stress that its beef really is with Galbraith personally, him having been a long-time critic of the secondary ticketing market.

“Until recently”, Viagogo’s statement claimed, “Stuart Galbraith regularly used Viagogo to sell thousands of tickets to a range of his artists’ events, presumably without their knowledge given his public stance against ticket resale”.

It went on: “Following a dispute over his request for preferred terms he threatened that he would use his artists, such as Ed Sheeran and the Red Hot Chili Peppers, to put pressure on Viagogo even if it meant causing huge inconvenience to his artist’s fans. We have Stuart on record saying that his artists would ‘do whatever he told them to do’ and that he would go to any lengths to cause chaos for Viagogo customers”.

Concluding, the company noted that: “We can’t believe that Ed Sheeran would knowingly permit his promoter to lie and steal and we can only imagine that Galbraith has been acting fraudulent without his artist’s knowledge”.

Perhaps unsurprisingly, Kilimanjaro Live has fiercely hit back at Viagogo’s statement and legal action, stating that “the claims made today by Viagogo are ludicrous, laughable and most importantly totally false”. It added that “Kilimanjaro will defend against this action vigorously and look forward to doing so in court”.

The legal action has been filed in the German courts on the basis that Kilimanjaro’s parent company DEAG is based there. Although, as DEAG has pointed out, this is an odd move given that Kilimanjaro wasn’t involved in Sheeran’s shows in the country.

Viagogo doesn’t reference specific shows or countries in its lengthy statement, though seems to be talking about Kilimanjaro’s anti-touting strategy in the UK. This would mean that the dispute centres on the specifics of British contract and consumer rights law. You have to think, therefore, that a German court wouldn’t have jurisdiction.

Elsewhere in its statement, Kilimanjaro accuses Viagogo of issuing yesterday’s proclamation in a bid to “deflect attention away from their upcoming appearance” before the culture select committee in the UK Parliament, as well as “the wide-ranging criticisms, multiple legal prosecutions in many territories (including by the Competitions And Markets Authority in the UK) and condemnation of their business practices”.

Viagogo’s Head Of Business Development Cristopher Miller is due to appear before Parliament’s culture select committee later today in a session discussing live music in general and secondary ticketing in particular. He will defend the ticket resale sector alongside a rep from eBay’s StubHub. Speaking against the touts will be a number of music industry reps including, well, Kilimanjaro’s Stuart Galbraith.

Assuming he shows up – and however good Galbraith’s stint might be – Miller is definitely the headline act, Viagogo having controversially declined to attend the last culture select committee session on touting. And, as Kilimanjaro pointed out, the hearing comes just days after the CMA announced it was taking Viagogo to court over various breaches of UK consumer rights law, including things like it not telling buyers “which seat in the venue they will get”. Something the firm basically admitted to in yesterday’s statement.

On the upside, Miller will be able to point out that the Advertising Standards Authority has removed its sanctions against the company after it changed the way it declares the prices of touted tickets on its platform. Although critics might point out that Viagogo only seems to comply with rules and regulations whenever failing to do so puts it at risk of losing the right to buy its way to the top of Google search lists for in-demand concerts. Anti-tout campaigners argue that this is how many fans are tricked into buy tickets from touts.

Either way, today’s session should make for interesting viewing. They should have sold some tickets to help pay for the renovations of the Palace Of Westminster. Then they could have set up a Victims Of Viagogo booth in Parliament Square and got paid twice!