Often controversial ticket touting platform Viagogo was in New Zealand’s Court Of Appeal yesterday seeking to overturn a High Court judgement secured against it last year by the country’s Commerce Commission.
It argues that High Court judge Mary Peters was wrong to rule that it misled consumers in New Zealand, so that they thought they were buying tickets from official sources when using the resale website.
Viagogo lawyer Aaron Lloyd told the appeals court that Peters had been far too swayed by the high number of complaints that had been made against the resale platform by consumers in New Zealand.
In the original case, the Commerce Commission reported that there had been about 9600 complaints in relation to Viagogo’s policies and communications between July 2016 and August 2019.
According to The Post, Lloyd told appeals judge Jillian Mallon that “the sheer number of complaints is irrelevant unless you are making an assumption about the underlying accuracy or truth of them”.
“It does not matter one hoot if you have a million complaints, if the complaints are all mistaken or false or incorrect”, he continued. “The only way the weight of numbers becomes relevant is if you make an assumption that at least the vast majority of those complaints are going to be truthful”.
Over the years Viagogo has been repeatedly criticised by music industry and consumer rights groups for using misleading language to imply it’s an official seller of tickets rather than a marketplace mainly used by industrial level ticket touts. That said, it has made changes to some of the language it uses in many markets over the years, often under pressure from regulators.
Lloyd told Mallan that it was difficult to see how “an objective person” would be misled into thinking Viagogo was a primary ticket seller given it declares that it is the “world’s biggest secondary marketplace” at the top of its website. Judge Peters, he added, had provided “insufficient reasoning” for why she sided with the Commerce Commission in concluding that the resale site had misled consumers.
Last year’s ruling also forced a rewrite of Viagogo’s terms and conditions regarding consumer disputes, which previously said that such disputes should be pursued through the Swiss courts even if a customer bought tickets in New Zealand, Viagogo’s corporate HQ being in Switzerland. The high court ruled that was an “unfair contract term” under the New Zealand’s Fair Trading Act.
However, that part of the ruling was only a partial win for the Commerce Commission, which is hoping that the Court Of Appeal will force a more significant rewrite of Viagogo’s terms.
That said, the Commission’s legal rep Nick Flanagan revealed yesterday that Viagogo is now saying that ticket-buyers can indeed take disputes with the ticketing platform to New Zealand’s Disputes Tribunal, rather than having to pursue the company through the courts in Geneva.
That is something that Flanagan dubbed “a 180-degree u-turn”, although Lloyd insisted that Viagogo hadn’t majorly changed its position on that point.
The Commission itself was in court earlier today presenting its arguments and we now await a judgement.