What you need to know
- The ACCC successfully pursued the Swiss-based viagogo for misleading and deceptive conduct in relation to its practices when re-selling tickets to events online.
- The conduct of viagogo meant that customers wrongly believed that viagogo was an "official" seller of tickets to events, and misled customers about the additional fees and charges payable when tickets were purchased through its website.
What you need to do
- When making statements on a website, consider how the statements will be viewed by consumers in light of the nature of the product or service being offered. For example, the word "official" has a particular meaning to consumers in the context of ticket sales, and in this case was found to be misleading and deceptive.
- Ensure that any specified purchase price is inclusive of any additional fees and charges (ie, ensure a single aggregate price is displayed).
Background
Viagogo is an online events ticket re-seller, incorporated in Switzerland. Ticket holders use the viagogo platform to resell tickets to events such as concerts. The ticket holder sets the price for the tickets. However, viagogo also adds charges and a booking fee of approximately 28%, which is not disclosed to the customer until the final stages of checkout.
The ACCC alleged that viagogo misled and deceived consumers in contravention of sections 18, 29, 34 and 48 of the Australian Consumer Law (ACL). Details of the alleged misrepresentations are set out below.
Alleged misrepresentations
Official Site representation
The ACCC argued that the use of the words “Buy Now, viagogo Official Site” contained in sponsored advertisements for viagogo on Google for particular events led consumers to believe that viagogo was an authorised seller of the tickets.
Justice Burley found that this conduct was misleading and deceptive and stated that using the word "official" reinforced to a consumer that they were purchasing tickets from authorised ticket vendor, when that was not the case. Justice Burley concluded that this conduct contravened sections 18(1), 29(1)(h) and 34 of the ACL.
Quantity representation
A number of statements were made on pages of the viagogo website to the effect that tickets were likely to sell out soon, or were in limited supply eg “Only five tickets remaining!” or “Only a few tickets left!”. Justice Burley found that viagogo did not adequately disclose that these tickets were from viagogo's own unofficial ticket stocks and did not refer to the overall number of tickets to the event. Justice Burley stated that an ordinary customer would have believed the inference and that the statements created a false sense of urgency, rushing the customer through the transaction. Accordingly, viagogo was found to have breached sections 18(1) and 34 of the ACL.
Total Price representation
The ACCC alleged that the “Tickets and Seating Selection" page of the viagogo website falsely represented for particular events that a consumer could purchase a ticket for a specified amount, when in fact substantial additional fees were also payable. These fees were not disclosed by viagogo until the end of the purchasing process. Justice Burley found that this conduct was misleading and deceptive in contravention of sections 18(1) and 29(1)(i) of the ACL.
Part Price representation
The ACCC alleged that on the “Delivery" page of the viagogo website, viagogo represented that the price for each of the tickets excluded further fees payable and failed to specify that in a prominent way. However, Justice Burley found that this was not misleading because the price was listed as a 'subtotal' and a disclaimer was included. However, Justice Burley did find that this representation breached section 48(1) of the ACL which makes it an offence not to specify in a prominent way and as a single figure, the single price for goods or services.
Next steps
The parties will be heard separately on the question of the relief that will be ordered.
Authors: Elizabeth Arms, Lawyer, Annika Barrett, Senior Expertise Lawyer and Kellech Smith, Partner.
