MONDAY 29 NOVEMBER 2021 COMPLETEMUSICUPDATE.COM
TODAY'S TOP STORY: The English court of appeal has upheld the guilty verdict against former ticket touts Peter Hunter and David Smith who were together sentenced for a total of six and half years in jail in relation to their touting companies, which operated as Ticket Wiz and BZZ... [READ MORE]

TOP STORIES Ticket tout convictions upheld by appeals court
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LEGAL StubHub again accused of breaking ticket touting regulations
Copyright groups criticise EU Council's 'general approach' to Digital Services Act

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LIVE BUSINESS Night Time Industries Association welcomes UK government's response to new COVID variant
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MEDIA BBC Radio 2 calls on listeners to select top 40 George Michael songs
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ARTIST NEWS Brian May says BRIT Awards comments were "twisted" to make him appear "unfriendly to trans people"
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RELEASES Dionne Warwick and Chance The Rapper release charity duet
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AND FINALLY... The Kunts make a second bid for Christmas number one with new anti-Boris song
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Ticket tout convictions upheld by appeals court
The English court of appeal has upheld the guilty verdict against former ticket touts Peter Hunter and David Smith who were together sentenced for a total of six and half years in jail in relation to their touting companies, which operated as Ticket Wiz and BZZ.

Hunter and Smith were jailed following an investigation pursued by UK National Trading Standards, which took responsibility for enforcing the consumer rights laws that are relevant to ticket touting against the individuals who were reselling tickets on an industrial level.

Hunter and Smith were found guilty of breaching laws that prohibit the use of special software to hoover up tickets from primary ticketing sites, and of failing to meet their legal obligation to warn the buyers of their touted tickets that they were not official sellers, and that the tickets they were selling could actually be cancelled by a show's promoter.

The two touts were found guilty by a jury at Leeds Crown Court in early 2020. They then took their case to the court of appeal, arguing that the judge in the original case had incorrectly directed the jury on matters of law, and that any restrictions attached to the sale or resale of tickets by a promoter were void and invalid. As a result, they argued, the guilty verdicts were unsafe and should be quashed.

However, the appeal judges have rejected all those arguments. An official summary of their judgement states that the appeals court has "upheld the conclusion of the judge at trial that the restrictions imposed by event organisers were valid" and also "concluded that the judge acted properly in all relevant respects and that the convictions are safe and lawful".

Part of Hunter and Smith's defence during the original trial was that many of the primary sites from which they bought tickets in bulk - and the secondary ticketing sites on which they resold those tickets - were aware of how they ran their business and in some cases actively encouraged it. And, of course, for a chunk of the time that the two men were touting, the biggest primary site - Live Nation's Ticketmaster - also owned two of the big secondary sites - Seatwave and Get Me In. This argument was re-presented - with new evidence - during the appeal.

The official summary of the appeals court judgement notes that Hunter and Smith "argued that for many years the commercial sale of tickets on the secondary sites by the 'big four' (Stubhub, Seatwave, GetMeIn! and Viagogo) had been not merely tolerated but in fact actively encouraged. They did this knowing full well that tickets were sold subject to restrictions".

"Moreover", it goes on, "they argued that three of the big four secondary sites were owned by, or operated in partnership with, primary ticketing sites. These sites classified traders like Hunter and Smith as 'trusted', and it was acknowledged that they would circumvent the purported restrictions. One secondary site gave them and other traders a bar code scanner so that they could resell digital tickets with a unique trader-secondary site generated barcode".

However, while acknowledging those allegations, the appeals court stated that: "This appeal ... focuses more narrowly upon the conduct of the appellants as buyers and resellers of tickets, and not on the possibility that fraud is also being perpetrated by others. It will be for the prosecutorial authorities to consider whether other and broader enforcement action is necessary".

That said, the appeals judges went on, "if the appellants are correct and there are potentially hundreds of other operators all running businesses like theirs; and if they are also correct and there is connivance and collusion between ticket touts and the [primary ticketing websites] and [secondary ticketing websites], then the ticketing market is one which appears to be characterised by a high degree of criminal fraud. The evidence we have seen certainly suggests this possibility".

Although not relevant to this case, that latter conclusion is nevertheless pretty significant. It remains to be seen if it motivates further scrutiny of the wider ticketing sector, past and present.

Either way, last week's ruling was welcomed by National Trading Standards. Wendy Martin, a Director at the government agency, said on Friday: "We welcome today's ruling by the court of appeal, which represents another major milestone in the efforts to tackle the dishonest and fraudulent practices in the secondary ticketing market".

"Consumers continue to be at a disadvantage when trying to spend their hard-earned money on tickets for music concerts and sporting events", she added, "and we hope our work to test the current legislation and make recommendations to government will make it easier and safer for consumers buying tickets in the future".

Meanwhile the anti-touting FanFair Campaign also hailed the ruling. Campaign Manager Adam Webb said: "This precedent-setting judgement will be a bitter blow for Hunter and Smith. But there will also be far-reaching ramifications for other touts, many of whom use similarly unlawful business methods to acquire tickets, and for websites like Viagogo and StubHub who depend on these suppliers for the bulk of their listings".

"All in all", he went on, "it's a good day for music fans, and another nail in the coffin for those who profit from, support and invest in these deeply unethical practices".

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StubHub again accused of breaking ticket touting regulations
StubHub has again been accused of breaking the rules regarding ticket touting in the UK, in particular by failing to declare when tickets are being sold on its site by professional touts.

According to The Guardian, recent analysis found that tickets for shows by artists like Adele and Coldplay were available on the StubHub platform without any details available about the sellers. The same tickets for the same seats at the same shows were also available on Viagogo, but on that site the identities of the professional touts selling the tickets were published. Imagine that, we've got to the point where it's Viagogo following the rules that shows up StubHub!

Viagogo, of course, owned StubHub for a while, having announced a deal to buy its main rival in the secondary ticketing domain in late 2019. However, the two companies never properly merged because the UK competition regulator launched an investigation into that transaction. In the end, to placate the Competition & Markets Authority, Viagogo committed to sell all of StubHub's operations outside of North America, with US investment entity Digital Fuel Capital then stepping forward to as a buyer.

It's also the CMA that is in charge of ensuring that sites like StubHub and Viagogo comply with all relevant UK consumer rights laws, with both companies previously agreeing to various obligations set by the regulator, including publishing the identities of professional touts selling tickets on their platforms. StubHub was previously accused by the CMA of failing to fulfil those obligations in January 2020, but the regulator said the site was back in line with the rules by August that year.

In its latest report on the operations of StubHub, The Guardian cites sources in the touting world who say that they tried to upload the legally required seller information alongside tickets being resold on the platform, but that that information didn't appear on the site. The newspaper also claims that some of that information did start to appear after it had contacted StubHub about the alleged failure to comply with its CMA set obligations.

For its part, StubHub insists that it is obeying the rules as as a matter of course, adding: "If we are made aware of non-compliance, we take corrective action to remove listings and notify sellers". However, anti-touting campaigners have urged the CMA to investigate.

Sharon Hodgson MP - who has long led the campaign against for-profit touting in Parliament - said it appeared StubHub might be "rowing back on their legal obligations". She then added: "Either the evidence presented to the CMA stands up or it doesn't - if it does, then I would urge [the regulator] to do their job, to start enforcement action, and help protect British consumers".

Meanwhile, Adam Webb from the anti-touting FanFair Alliance said that the evidence of rule-breaking at StubHub was "clear cut", adding that: "I can only assume the CMA is either ignoring this evidence, or they don't believe it's important enough to intervene".

The CMA told The Guardian that they would take "appropriate action" if there was evidence firms were failing to comply with consumer rights law.

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Copyright groups criticise EU Council's 'general approach' to Digital Services Act
Trade groups representing various copyright industries - including music industry groups like AEPO ARTIS, ECSA, FIM, GESAC, IAO, ICMP, IFPI, IMPALA and IMPF - all signed a letter last week expressing concern about the current direction the EU Digital Services Act is taking.

The DSA is a set of proposals that aims to deal with the negative impact of harmful content online by increasing the obligations of digital platforms. It's not specifically focused on copyright matters - however, some of the proposals within it might impact on how digital services deal with copyright infringing material that flows through their networks. And that impact might be positive or negative.

The proposals are currently working their way through the European Union's law-making systems, with a lot of the attention to date falling on debates regarding the DSA in the European Parliament. However, last week's letter related to what has been happening in the EU Council, which brings together relevant ministers from the governments of each EU member state.

The letter said: "We are very concerned that the 'general approach' on the Digital Services Act adopted today by the Council fails to deliver on the DSA’s original objective of establishing more accountability for online platforms and creating a safer and more trustworthy online environment".

"Paradoxically", it added, "some of the modifications proposed would have the exact opposite effect. They would weaken the current liability regime and have a detrimental impact on the existing standards and good practices for addressing illegal content and activities in some areas, including online infringements of copyright and related rights".

Of particular concern are proposals that digital companies continue to benefit from safe harbours that reduce their liabilities in relation to harmful content "even when they do not comply with their due diligence obligations", and also that search engines would benefit from new limitations on their liabilities.

"The introduction of a 'safe harbour' for search engines alongside 'caching' services ... would go against the EU's general political commitment not to modify or broaden the liability limitations under the [existing] e-Commerce Directive. The goal of increasing the accountability of search engines should be achieved through the introduction of effective due diligence obligations, not by making them beneficiaries of a broad and unjustified 'safe harbour'".

"This new 'safe harbour'", the letter went on, "would fall below several existing national measures and obligations and would remove all incentives for search engines to stop enabling access to illegal or harmful content - and make money on the back of such activity".

The copyright industry reps also again called for stronger 'know your business customer' obligations to be introduced by the new EU act. Commercial entities online are meant to be transparent about who is operating a service and where they are based, however plenty of rogue operators fail to do this, making it harder to pursue legal claims against them.

To that end, campaigners are calling for new rules that force online intermediaries to ensure their business customers comply with these obligations. In the original draft of the DSA, such 'know your business customer' rules were only included for online marketplaces.

In their letter last week, the copyright groups said: "Extending the scope of application of the obligations to ensure the traceability of business users - 'Know Your Business Customer' - is necessary to tackle the serious problem of illegal operators acting on a commercial scale and hiding behind false identities".

"There should also be more effective tools introduced when it comes to addressing rogue players, repeat infringers and systematic illegal activities", it added. "A meaningful mechanism for the enforcement of these obligations should be established to ensure that EU consumers have as little exposure as possible to illegal content, services and products".

The letter then concluded: "The EU has a unique opportunity to create a secure, well-functioning online environment to improve consumer trust and enable our creative sector to grow in the EU digital single market. It is therefore crucial for member states, together with other co-legislators, to reassess the above-mentioned proposals".

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Night Time Industries Association welcomes UK government's response to new COVID variant
The Night Time Industries Association has welcomed the announcement that new measures in England to deal with the latest variant of COVID-19 will not include additional obligations for live entertainment and other night-time businesses.

UK Prime Minister 'Boris' Johnson announced some new regulations this weekend in response to concerns being raised in the scientific community about the so called omicron variant of COVID-19. Those new regulations include the mandatory wearing of face masks on public transport and in shops, and a return of the obligation for those entering the UK to have a PCR test within two days of arrival (a lateral flow test having been acceptable in recent weeks).

However, there are no new entry or mask requirements for hospitality businesses. The government has previously said that mandatory checks at some venues of the COVID or vaccination status of all customers - as is currently required in Scotland and Wales - could be introduced in England if there is a big spike in coronavirus infections and hospitalisations. However, such checks are not being introduced in response to the omicron variant.

Welcoming this decision, NTIA boss Michael Kill said this weekend: "The reported detection of the new variant in the UK is hugely concerning. We are encouraged by the government's decision not to mitigate against hospitality and night time economy settings, with the additional measures presented by the PM including wearing masks within shops and on public transport in England, coupled with more stringent border controls for visitors entering the country, as a first response".

He added that, although it's important to address the concerns relating to the omicron variant, there is also a need "to be clear that the [night-time] sector is still extremely fragile and will not survive further trade inhibiting restrictions or a potential lockdown. The current baseline mitigations within businesses across this industry have been extremely effective. Coupled with the vaccination programme, we must remain confident that we are in a stronger position to deal with variants than many other countries across the world".

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BBC Radio 2 calls on listeners to select top 40 George Michael songs
BBC Radio 2 is calling on listeners to vote for their favourite George Michael song, to mark the 40th anniversary of his entry into the music industry with the formation of Wham! in 1981. The final top 40 of George Michael favourites will be played on a three hour show presented by Claudia Winkleman on New Year's Day.

"As well as being an amazing performer, George's songwriting was a thing of beauty", says Winkleman. "From love to heartbreak, joy to sadness, there's a song from his extensive catalogue to suit every mood and emotional need".

Head Of Music at Radio 2, Jeff Smith, adds: "George Michael is one of Radio 2 listeners' most loved artists. He was a master lyricist and composer and his music, from the early hits with Wham! in the early 80s through to his later work, continue to have a timeless appeal".

Two more Michael-focussed shows will be broadcast on Radio 2 on 1-2 Jan, 'George Michael - Older At 25' and 'George Michael At The BBC'.

Voting in the top song poll is open now and will continue until 1pm on 11 Dec.

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Brian May says BRIT Awards comments were "twisted" to make him appear "unfriendly to trans people"
Brian May has said that comments he made last week in relation to the BRIT Awards dropping gendered categories were "subtly twisted" by some pesky journalists in order to make it appear that he is "unfriendly to trans people".

"Yes - I was ambushed and completely stitched up by a journalist at the recent ITV event", he says in a new post on Instagram. "And it's led to a whole mess of press stories making it look like I'm unfriendly to trans people. Nothing could be further from the truth. My words were subtly twisted. I should have known better than to talk to those predatory press hacks".

"Sincere apologies to anyone who has been hurt by the stories", he went on. "My heart is open as always to humans of all colours, all creeds, all sexes and sexualities, all shapes and sizes - and all creatures. We all deserve respect and an equal place in this world".

That message does echo some of what it was reported he said at ITV's Palooza industry event last week, to the effect that our differences should be celebrated. However, that was part of a lengthy and somewhat contradictory comment on the streamlining of BRIT Award categories, in which he also claimed the changes were part of a line of shifts in public discourse that were happening "out of fear" and without consideration of the "long-term consequences".

"What matters is justice and equality of opportunity, no matter who you are", he was quoted as saying. "[But] that is actually not happening at the moment as everyone is jumping to conclusions and everyone is scared of doing the wrong thing. I do find it very uncomfortable. I don't think things are going very well, I have to say".

"I want to see people start to understand each other in the new year and recognise the differences there are between us", he added. "Between our colour, between our sex and between our talents and celebrate the differences".

Also speculating during last week's conversation on how Queen would fit into the modern world if they formed today, he went on: "Freddie came from Zanzibar, he wasn't British, he wasn't white as such – nobody cares, nobody ever, ever discussed it".

"He was a musician, he was our friend, he was our brother", he went on. "We didn't have to stop and think: 'Ooh, now, should we work with him? Is he the right colour? Is he the right sexual proclivity?' None of that happened, and now I find it frightening that you have to be so calculating about everything".

"I am sure if Queen started now we would be forced to have people of different colours and different sexes and a trans [person], but life doesn't have to be like that", he added. "We can be separate and different".

There has been much discussion about the decision made by BRIT Awards organisers to stop handing out solo artist awards by gender.

Some are legitimately concerned that the changes will mean fewer nominations for women. However, if that is the case, it would reflect wider issues in the music industry and society too, which obviously should also be addressed (and, indeed, other work has been ongoing for some time to make the BRITs voting process more diverse).

But, despite those concerns, by merging the male and female categories, the BRITs become more inclusive and also finally recognise that your gender does not impact on your ability to make music.

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Dionne Warwick and Chance The Rapper release charity duet
A year after Dionne Warwick queried Chance The Rapper's stage name on Twitter, the unlikely duo have released a single together, called 'Nothing's Impossible'. Proceeds from the track will go to two charities chosen by the musicians.

This all started last December when Warwick tweeted, "Hi, Chance The Rapper. If you are very obviously a rapper why did you put it in your stage name? I cannot stop thinking about this".

"Sorry I'm still freaking out that you know who I am", he replied. "This is amazing! I will be whatever you wanna call me Ms Warwick”.

Then came the key tweet from Warwick: "Of course I know you. You're THE rapper. Let's rap together. I'll message you".

A little over a month later, Warwick announced that they now had plans to record together, saying in a video posted to Twitter: "Chance and I will be getting in the studio very, very soon. It's gonna be a pleasure working with him and his organisation, called SocialWorks, as he's working with mine, Hunger: Not Impossible".

Then they left it long enough for everyone to forget that all this had happened before actually getting round to releasing the track, which arrived on Friday.

"The wait is over", said Warwick in a new video on Twitter. "Finally, after a year, the duet I did with Chance The Rapper is finally out - 'Nothing's Impossible'".

"[The] Not Impossible organisation is how I got involved with this", she went on, adding "[I] felt that if I could be of some service to them with my talent ... then why not? I'm so THRILLED that Chance also felt the same way. So now I'm asking you all, please, do what you can to help those who are not able to help themselves. That's what this is all about. You see, nothing's impossible if you believe".

There you go then. Although, before you listen to the track, I should warn you that, despite promises made a year ago, Warwick does not rap on it. Listen to 'Nothing's Impossible' here.

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The Kunts make a second bid for Christmas number one with new anti-Boris song
Having gone top five in the Christmas singles chart last year with their song 'Boris Johnson Is A Fucking Cunt', The Kunts are making another bid for the UK's festive number one this year. The band will release 'Boris Johnson Is Still A Fucking Cunt' next month.

The band say that they are releasing the new song "because Boris Johnson is a fucking cunt who still behaves as if no one has ever told him that" and "you don't fell a big tree with one swing of a little chopper".

They add that they hope their song will "help voice dissatisfaction with the way [Johnson] conducts himself" and "further undermine his credibility in the media and among his remaining supporters".

Also, they say, they just want to "ruin his Christmas".

Whether the song will do any of those things remains to be seen. You may already have spotted one issue with this whole plan. It's unlikely that Radio 1's chart show would play a song that included "fucking" or "cunt" in its title, let alone both together. Last year, The Kunts got around that by releasing a more radio-friendly version called 'Boris Johnson Is A Sausage Roll'.

That meant that two sausage roll-themed songs made the 2020 Christmas chart, with number one going to Ladbaby's 'Don't Stop Me Eatin'. It's still unclear if Ladbaby will try for a fourth sausage roll-themed Christmas number one in a row this year, but - even if he doesn't - maybe sausage roll fans will still be catered for should The Kunts use the same tactic as last year to get some radio play.

Anyway, you can watch the video for 'Boris Johnson Is Still A Fucking Cunt' here. The song will be available to download and stream from 17 Dec.

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ANDY MALT | Editor
Andy heads up the team, overseeing the CMU Daily, website and Setlist podcast, managing social channels, reporting on artist and business stories, and writing the CMU Approved column.
andy@unlimitedmedia.co.uk (except press releases, see below)
   
CHRIS COOKE | Co-Founder & MD
Chris provides music business coverage, writing key business news and CMU Trends. He also leads the CMU Insights consultancy unit and the CMU:DIY future talent programme, as well as heading up CMU publisher 3CM UnLimited.
chris@unlimitedmedia.co.uk (except press releases, see below)
   
SAM TAYLOR | Commercial Manager
Sam oversees the commercial side of the CMU media, leading on sales and sponsorship, and also heads up business development at CMU Insights and CMU:DIY.
sam@unlimitedmedia.co.uk or call 020 7099 9060
   
CARO MOSES | Co-Publisher
Caro helps oversee the CMU media as a Director of 3CM UnLimited, as well as heading up the company's other two titles ThisWeek London and ThreeWeeks Edinburgh, and supporting other parts of the business.
caro@unlimitedmedia.co.uk
 
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