by Mark James, Professor of Sports Law at Manchester Metropolitan University, and Guy Osborn, Professor of Law at University of Westminster.
Whether it is the music industry, sports matches or theatre productions, the scourge of ticket touts is a massive issue. The experience of tickets selling out in a matter of seconds, only to appear at marked up prices on other websites or outside events is an experience that is all too familiar.
Recent research published by FanFair Alliance, a campaign group that promotes a transparent and properly functioning ticket market, has highlighted the growing dissatisfaction with ticket touting. Out of more than 1,100 people surveyed, nearly three quarters thought touting was a major concern for music fans, 65% said it would result in them attending fewer gigs, 58% that they would spend less on food and drink at events, and 47% that they would spend less on recorded music as a result.
The survey also identified three forms of confusion at the heart of the ticketing market: the blurring of the distinction between the primary and secondary market; an inability to determine who was the official ticket agent; and the failure of secondary platforms to provide the identity of a reseller.
In particular, 44% of people in the survey said they were unaware of the difference between primary and secondary sellers. This is exacerbated by Ticketmaster, the world’s largest primary ticket agent, owning two of the big four secondary platforms, GetMeIn and Seatwave, all of which have Live Nation as their parent company. The other two major players are Stubhub and Viagogo.
The UK position
Attitudes towards touting in the UK are ambivalent. At one end of the spectrum are upholders of free market ideals who consider “secondary ticketing merchants” to be entrepreneurial, such as Conservative minister Sajid Javid. Others – including many artists – are a lot more critical. The comedian Stewart Lee, for example, has expressed his dismay at the practice and questioned its morality.
Currently, it is only criminal to tout tickets for professional football games, which is justified on public order grounds. Ticket touting at the London 2012 Olympic and Paralympic Games and the Glasgow 2014 Commonwealth Games was also criminalised, but on the basis that the image of these events needed protecting. These legislative anomalies aside, it is ten years since the government’s Culture, Media and Sport Select Committee conducted its initial investigation into “the murky world of ticket touting”. Little since then has changed.
The independent Waterson Report of 2016, which was commissioned by the government, recommended that the use of ticket bots be criminalised. But this has not yet happened. Its recommendation that more information about the tickets being sold should be published on secondary platforms is now in the Consumer Rights Act 2015. This requires touts to publish the ticket’s original face value and any relevant restrictions, such as a ban on resales, and enough information about the ticket so that the purchaser can identify the specific seat or standing area for which it is valid.
But despite a further consultation, the government continues to favour self-regulation over direct intervention, notwithstanding attempts by some MPs such as Sharon Hodgson to criminalise the activity.
The need to regulate
It is clear that self-regulation has failed and that this £1 billion industry is riddled with conflicts of interest. Its detrimental impact on all those affected by touting now has a much clearer evidence base. Touting is not about clever entrepreneurs, but big businesses draining money from the entire industry.
Instead of tinkering around the edges, by promising to regulate the use of bots or limiting the amount for which a ticket can be resold, direct regulation of the secondary market is needed. First, the business links between primary and secondary platforms need to be addressed. It is not in Live Nation/Ticketmaster’s economic interest to prevent sales on GetMeIn and Seatwave. Second, criminalising resales above the combined amount of face value and associated fees should be considered.
Regulation alone is not the answer. Fans need to be educated about the problems associated with engaging with the secondary market. In particular, there is a need to address the misconception that it is not illegal to resell tickets to sports and entertainment events.
In the vast majority of cases, it is at least a breach of contract to resell event tickets without the authorisation of the event organiser, and to breach the terms of a contract is unlawful. The knock-on effect of such a breach is that the ticket is invalidated and the right to attend the event revoked.
The Rugby Football Union succeeded in forcing Viagogo to release information about touts so that it could pursue breach of contract claims against them and trespass claims against the purchasers of touted tickets. It is this ability to enforce the ticket’s terms and conditions that has encouraged performers from Ed Sheeran to Iron Maiden to require additional ID to ensure that only the original ticket purchaser and their group can attend events.
This approach needs the buy-in of venues, however. At a recent Metallica concert, fans with touted tickets were allowed in against the express wishes of the band. Live Nation, the tour promoter and ultimate owner of GetMeIn and Seatwave, forced the venue to honour the touted tickets.
In the FanFair survey, 80% of the sample felt the big four secondary ticket platforms were ripping fans off. Face value resales to other fans are seen as acceptable, but profiting from secondary ticket sales, particularly on an industrial scale, is not. The growing discontent against touting has resulted in Google announcing that from January 2018, event ticket resellers will need to be certified before they can advertise through its service AdWords.
The ticketing industry as a whole needs overhauling, not just the problem of ticket touting. Excessive booking fees and how the market responds to technological advances, particularly the use of paperless tickets and the potential of new technology like blockchain must also be considered. Only a coherent approach to the market as a whole will help provide a solution to this perennial problem.