Anyone buying or selling

In this short article we provide an overview of the recently introduced legislation that is seeking to curb so called ticket ‘touting’ or ‘scalping’.

Background

A large number of sporting events and in particular music events are noted for the high incidence of alleged ticket touting with ticket prices achieving many multiples of their face value. This often leaves fans unable to attend popular events that sell out quickly as they are snapped up by touts who, on resale seek prices that are only affordable to the very wealthy or corporates.

In an effort to combat this, a Private Members’ Bill was brought forward in 2017 by then Deputies Noel Rock and Stephen Donnelly.  It provided for a ban on the above-cost resale of event tickets and was supported by all parties in early 2019.  The Government of the day also approved the notification of the amended Bill to the European Commission in accordance with the requirement under Directive (EU) 2015/1535 on the procedure for the provision of information on technical standards and rules on information society services. No issue of compatibility with the EU law or the internal market was raised by the European Commission or other Member States.

More recently, the Scheme of the Bill was submitted to the Joint Committee on Enterprise, Trade and Employment for pre-legislative scrutiny and their report was published on 18 February 2021.  On 20 April 2021 the Tánaiste Leo Varadkar TD received Government approval to publish legislation which will ban ticket touting and reselling of tickets above face value for large events.

The Draft Bill

The Sale of Tickets (Cultural, Entertainment, Recreational and Sporting Events) Bill 2021 will, if enacted, ban the resale of tickets to live events, matches and concerts in designated events and venues, at a price above face value.  There is an exemption for amateur sports clubs and registered charities for fundraising purposes. A person found guilty of an offence under the act will face a fine of up to €100,000 or up to two years imprisonment.

Once enacted, operators of venues with a capacity to hold 1,000 people or more will be able to apply to the Minister for Enterprise, Trade and Employment for the designation of that venue.  When designated, reselling of tickets above the original sales price for that venue will be prohibited. The Minister may also designate a venue with a capacity of less than 1,000 if, after consultation with the venue operator, the Minister is of the opinion that the venue will hold one or more events which may give rise to the sale of tickets for a price exceeding the original sale price and that the designation of the venue would be in the public interest.  The legislation also provides that event organisers or venue operators may apply for the designation of events which takes place on an annual or other periodic basis in the same venue.  This would be of particular application to sporting events.

When a ticket is sold for an event which has been designated or which is to take place in a designated venue then the original seller must be given clear information (with the ticket and when advertising) that tickets cannot be resold above face value for the event in question.  Resellers of these tickets must also provide information on the original sale price of the ticket and the location of the seat or standing area to which the ticket entitles the holder to gain admission.

Possible Challenges and Objections to the Bill

The proposed legislation is likely to face challenges, primarily from outside of the legislative process. Viagogo, a Swiss-based multinational that runs a website allowing people to resell tickets is of the opinion that such a bill is unconstitutional as it attacks property rights and is therefore in conflict with our Constitution (namely articles 40.3.2 (an obligation on the State, by its laws, to protect inter alia the property rights of every citizen) and 43 (a guarantee by the State not to pass any law abolishing the rights in relation to private property)). The company has submitted a legal opinion to the Oireachtas Joint Committee on Enterprise, Trade and Employment detailing their concerns.

Other objections are that if the Bill were to become law, reselling would simply move to the black market or that the Bill, which is based on a four-year-old consultation paper, is now out of date, and fails to take changes such as the rising influence of dynamic pricing into account.

Conclusion

It is likely that the bill will move through the legislative process successfully given its cross party support but also that once through that process it may likely be subjected to a legal challenge.  Whilst the issue of ticket touting has undoubtedly waned in the public’s consciousness, due to the circumstances we find ourselves in with Covid, it will come into very sharp focus as events and venues begin to open up.  Given the likely levels of demand and the imposed reduced capacities, supply will not meet demand. This will make this topic and the legislation designed to curb ticket ‘scalping’ a particularly interesting one in the months ahead.

For further information contact Elaine McGrath emcgrath@reddycharlton.ie