That’s not the ticket! Viagogo found liable for misleading conduct

That’s not the ticket! Viagogo found liable for misleading conduct

That’s not the ticket! Viagogo found liable for misleading conduct

The second-hand ticket marketplace Viagogo has been found liable for breaches of the Australian Consumer Law by Justice Burley in ACCC v Viagogo AG [2019] FCA 544. Among other contraventions, his Honour found that Viagogo marketed itself as an official seller of tickets when it was not, and failed to sufficiently disclose substantial additional fees which were added on to each ticket’s purchase price.

Viagogo’s business and the ACCC’s case

Founded in 2006, Viagogo is an unofficial online ticket marketplace where people re-sell tickets to events at prices of their choosing. It operates all around the world, including an Australian-specific site at <https://www.viagogo.com/au>.

The Australian Competition and Consumer Commission (ACCC) alleged that Viagogo had breached the prohibition on misleading and deceptive conduct in section 18(1) of the Australian Consumer Law (ACL) by conveying four misrepresentations on its Australian website and various advertisements, each of which is considered below.

  1. The Official Site Representation

The ACCC alleged that Viagogo had misrepresented that it was an official ticket seller, rather than a reseller, through the words “Buy now, viagogo Official Site” which appeared in advertisements placed by Viagogo in Google search results. Viagogo argued that the word ‘official’ was in reference to the Viagogo site itself.

Justice Burley found that an ordinary consumer would understand this phrase to mean that Viagogo was an authorised seller of tickets, which was misleading. The alternative construction asserted by Viagogo would only make sense if there were imitator Viagogo websites, and would be more natural if the phrase was “Official viagogo Site”.

  1. The Quantity Representation

The Viagogo website displayed words such as “Only five tickets remaining!” and “Only a few tickets left!” multiple times during the purchasing process. The ACCC alleged that this was misleading, as an ordinary consumer would understand it to be in reference to the overall number of tickets to the event, when it was actually referring only to the number of tickets being sold on Viagogo.

Justice Burley found that the messages were designed to “increase the tempo” of the transaction and create a false sense of urgency. Because Viagogo had not adequately disclosed on its website that it was a second-hand marketplace, rather than an official seller, the ordinary consumer would understand these messages to be in reference to the total number of tickets to the event, which was misleading.

  1. The Total Price Representation

Viagogo’s ‘Tickets and Seating Selection Page’ advertised tickets at prices which excluded substantial additional fees. The additional fees were not disclosed until the last stage of the purchasing process. In one example, tickets were advertised at AU$135, but could only be purchased for AU$177.45.

Justice Burley agreed with the ACCC that this was misleading, as the eventual disclosure of the additional fees was not sufficiently proximate to the original page to dispel the misrepresentation, particularly due to the size of the additional fees and the false sense of urgency created by the messages referred to above during the purchasing process.

  1. The Part Price Representation

The price shown to consumers on the ‘Delivery Page’ during the purchasing process also excluded an additional booking fee. The ACCC alleged that this was misleading conduct, and that it was also a breach of section 48(1) of the ACL, which provides that sellers must specify a single price for their goods in certain circumstances.

Justice Burley found that the price shown to consumers on the ‘Delivery Page’ was not misleading, as it was listed as a ‘Subtotal’ and included a disclaimer that the price was subject to further fees.

Nevertheless, the ‘Delivery Page’ was in breach of section 48(1), as that section requires sellers to specify a single price based on the ‘minimum quantifiable consideration at the time of the representation’. As the booking fee was not displayed on the ‘Delivery Page’, even though it was applicable to every transaction, the ‘Delivery Page’ did not satisfy the requirements of section 48(1).

Key lessons for businesses

The issue of relief is to be heard at a later time. Neither party has appealed.

In terms of the key take-away points for businesses which offer products for sale to Australians online:

  1. Do not use the word ‘official’ in advertisements if this could be interpreted as suggesting a connection with the original seller which does not exist. Even if there is an arguable alternate interpretation of the word, the ordinary consumer is, depending on the circumstances, likely to view this word as indicating a formal connection with, or endorsement by, the original seller.
  2. If a specified purchase price is subject to additional fees, this should be clearly stated, and the aggregate price displayed. The additional fees should be added on to the total price as soon as they are calculable – for example, shipping should be added on as soon as the customer has entered shipping details.
  3. Beware of using pop-ups, banners, and notifications during the purchasing process which are designed to create (or might otherwise have the effect of creating) a sense of urgency. Even if these messages are not in themselves misleading, they lessen the likelihood of an ordinary consumer paying attention to the ‘fine print’ during the purchasing process.

Evidentiary post-script

The nature of the evidence led by the ACCC to demonstrate the process of buying a ticket on Viagogo and the Google advertisements as at the relevant dates is of particular interest for practitioners.

Instead of relying evidence from the Wayback Machine (a digital archive which stores versions of websites as they existed at certain dates), which has been thrown out in several recent cases, the ACCC led screen capture videos of ACCC employees purchasing tickets on Viagogo, which showed the dynamic purchasing process from start to finish. The ACCC also relied on screenshots taken with a program called ‘Snagit’.

This evidence was admitted by Justice Burley, who was satisfied that the videos provided a ‘fair representation of the viagogo website on the dates that the videos were created’. There was no suggestion that the screenshots were second-hand hearsay because they were taken using a third-party program.

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