Summary of Council decision:
Five issues were investigated, three of which were Upheld. The other two were informally resolved after viagogo agreed to amend or withdraw their advertising.
The website and a paid-for search ad for the secondary ticketing website www.viagogo.co.uk:
a. The tickets page of the website for an upcoming concert, seen on 21 August 2017, listed various different prices available. Above the different ticket prices, text stated “How Many Tickets?” with the option of selecting different quantities of tickets. Text for one of the available ticket options stated “Section: Floor. 2 tickets. £90.00 per ticket” alongside a link to “Buy”. Text briefly appeared at the top of the page under the heading "General Notes" where the fourth bullet point stated "Prices are set by sellers and may be lower or higher than face value. Prices exclude booking and delivery fees (applicable by transaction)". That text quickly dropped down the page as the different available tickets appeared, and rose to the top of the page again very briefly when the claim “Rechecking availability” appeared. On the hyperlinked page after clicking "Buy", under the heading “Your Order Details”, text stated “Number of Tickets 2. Ticket Price 2 x £90.00. Not Included: Delivery Fee, VAT and Booking Fee”. On the subsequent web page, text stated “Number of Tickets 2. Ticket Price 2 x £90.00. Delivery Fee 2 x £4.98. VAT and Booking Fee 2 x £30.00. TOTAL PRICE £249.95”.
b. The Google paid-for-search ad, seen on 12 July 2017, featured the claim “Ed Sheeran Tickets 2017 - Buy Now, viagogo Official Site - viagogo.co.uk”. Further text stated “100% Guarantee…Guaranteed Satisfaction”.
The ASA received 23 complaints including from the campaign group Fanfair Alliance, who campaigned against secondary ticketing online, and the music promoters Festival Republic and Kilimanjaro Live.
1. Fanfair and most other complainants, who believed ad (a) did not make sufficiently clear the additional ticket fees and charges that consumers were required to pay to order tickets, challenged whether the presentation of the pricing information in ad (a) was misleading.
2. Fanfair, Festival Republic, Kilimanjaro Live and several other complainants challenged whether the claim “Official” in ad (b) misleadingly implied that viagogo was a primary ticket outlet rather than a second-hand ticket website.
3. One complainant, who understood that Ed Sheeran tickets not purchased through official ticket partners would not be accepted, challenged whether the claim “100% guarantee” in ad (b) was misleading.
1. viagogo AG explained that they were an online ticket marketplace that facilitated the sale and purchase of tickets to events around the world, with users in over 100 countries. They were not the seller or buyer of any tickets that were listed on their website, and did not determine the price of any tickets. They believed the pricing information was clear to consumers at every stage of the process, and all applicable additional ticket fees and charges were set out for consumers together with the total price payable before the consumer confirmed their order and agreed to purchase the tickets
viagogo said that each ticket home page contained the text “prices exclude booking and delivery fees (applicable by transaction)”, and therefore at the first stage of the customer journey, consumers were informed that the prices displayed did not include additional booking and delivery fees. They said that the wording also appeared at the top of the screen when the consumer first clicked on the ticket home page, and repeatedly rose to the top of the screen on the subsequent page. They said once the customer had selected their chosen ticket and continued to the confirmation stage, the website stated that the delivery fee, VAT and booking fee were not included in the ticket price. Therefore, they argued that the information was made clear to consumers before any transactional decision was made.
viagogo said it was not possible to state the final value of the additional charges because they could not be calculated in advance. They said the booking fee was calculated based on the number of tickets the buyer wished to purchase and the price of the ticket. They said that customers could amend the number of tickets they wished to purchase at several points along the customer journey, which would change the booking fee. Therefore, the booking fee was only calculated once the final number of tickets and ticket price had been confirmed by the customer.
viagogo said the cost of VAT that was applied to the booking fee could not be calculated in advance until a customer confirmed their country of residence which was at a later stage in the booking process. Once the buyer’s and seller’s billing addresses were entered, relevant tax-related charges were shown depending on the location of the users. They said that their UK website received visitors (both sellers and buyers) from outside of the UK, and therefore it was not the case that the UK rate of VAT would always apply. They believed it would cause more confusion to consumers if they guessed the applicable rate of VAT at the start of the process, with the VAT then subject to change once the consumer’s country of residence was known. They said that in order to accurately calculate VAT upfront it would have been necessary to ask consumers to provide personal data, including their address, before they were even able to view the tickets available. viagogo’s view was that it would be disproportionate to require consumers to provide that data at such an early stage in the customer journey, particularly when they could just be browsing the UK website to check availability.
viagogo said that various different delivery methods were potentially available when a UK buyer purchased tickets from a UK seller which had a range of prices depending on the location of the customer, speed of delivery and whether weekend delivery was available. The delivery options available for each ticket listing varied depending on the type of tickets (e.g. paper ticket or e-ticket) and the time left until the event. The availability and cost of the delivery methods were also subject to change too; there was no “standard fee” for UK delivery. The four methods were UPS Standard, UPS Express Saver, Royal Mail Special Delivery and Royal Mail Special Delivery with Saturday Delivery, in addition to the options of downloading e-tickets or collecting the tickets. However, they said UK buyers were currently unable to choose between delivery and collection, or to select their desired service level of delivery.
viagogo said that the delivery fee was displayed prior to buyers entering their full delivery address, but only after they had entered the country that the tickets needed to be delivered to. They provided evidence that the delivery charge for the same tickets changed depending on the country the seller (and the ticket) was located and the delivery address of the buyer. For example, if the seller (and therefore the ticket) was located in the UK, the delivery charge would be higher if the buyer requested delivery to the USA, rather than the UK. It was therefore not possible to calculate the delivery fee until the delivery address of the buyer was known (which might not have been the same as the buyer’s current location or country of residence).
2. viagogo said, in the context of the claim “Ed Sheeran Tickets 2017 - Buy now, viagogo Official Site - viagogo.co.uk”, the claim “official” showed that the ad was a genuine viagogo ad which directed consumers to the official viagogo website. They highlighted that the viagogo URL appeared after the claim “Official Site”. They said that consumers could spend a significant amount of money purchasing event tickets, and it was helpful for them to know that the link was a genuine link from a reputable company, and would not take them to a spurious website. They said that, unlike some of their competitors who operated in the primary and secondary ticketing market, viagogo was an established brand that was known to only operate in the secondary ticketing marketplace. Therefore, they did not believe the claim misleadingly implied that viagogo was a primary ticket outlet. During the investigation, viagogo stated that they had stopped using the claim “official” in their paid-for search ads for event listings.
3. viagogo said the claim “100% guarantee” referred to their guarantee that sellers would get paid for the tickets they sell and fulfil on time, and that buyers would receive replacement tickets or a refund in the unlikely event that a problem arose with receiving valid tickets in time for the event. Therefore, consumers were guaranteed to receive valid tickets for the event or their money back. They said the guarantee provided protection to their customers that would not be available if customers contracted with the ticket seller directly or via certain other online providers. viagogo explained that, as a secondary ticketing marketplace, they did not have oversight of the conditions applicable to tickets sold on the viagogo website, and in particular whether there were any restrictions on resale or entry (e.g. age restrictions). Those conditions were imposed, enforced by and at the discretion of the event provider or venue; they were outside of viagogo’s control. Therefore, it was not possible to guarantee that all customers who purchased tickets would be able to successfully gain entry to the event. However, as part of the ticket listing process, sellers were asked to confirm whether any restrictions applied to the tickets they were looking to sell.
viagogo argued that the fundamental purpose of consumer guarantees on products and services was to protect the consumer in the event that there was an issue with the product or service. Those guarantees were not generally understood by consumers to be a guarantee that the product would work, but rather than in the event that any problems arose, the consumer would have some form of protection or recourse. They therefore did not believe that the words “100% guarantee” would be interpreted by consumers to mean that they were guaranteed entry to the relevant venue. They also said that the ad was restricted by space, and therefore it was not possible to explain the entire scope of the guarantee in the small space available. They pointed out that the guarantee was described in full on their website and in their terms and conditions. viagogo also said that the claim was being phased out of its Google paid-for search ads.
The ASA noted the advertised £90 ticket price did not include the booking fee and the delivery fee. The CAP Code rules on misleading advertising and pricing required that, to avoid misleading consumers, quoted prices must include non-optional taxes and fees that applied to all or most buyers and should also state the applicable delivery fee; the only exception was when those fees and taxes could not be calculated in advance. In such circumstances, they must make clear that the fees were excluded from the advertised price, and in the case of taxes and the booking fee, they must also state how they were calculated. We considered that the relevant information needed to be made clear as soon as ticket prices were quoted before the consumer had made a transactional decision to proceed further.
We noted viagogo’s comments that the booking fee could not be calculated in advance because it varied based on the number of tickets that buyers selected, the ticket price and the rate of VAT charged on the booking fee. However, we noted that at the top of the web page consumers had to select how many tickets they wished to buy before they could continue with the customer journey. We considered it was therefore possible for the web page to present the total price of the ticket inclusive of the booking fee, and for that price to change depending on how many tickets the buyer selected to purchase.
We understood that, irrespective of the location of the venue and the location of the seller, the rate of VAT that the buyer was charged was based on the buyer’s country of residence. viagogo argued that it could not be calculated in advance because, prior to consumers selecting a ticket, they did not know the buyer’s country of residence. However, we considered that, given the claims appeared on the UK version of the website, most buyers would be from the UK, and would therefore pay the UK rate of VAT. Furthermore, viagogo would already know the address of registered viagogo customers if they had signed in at the beginning of the customer journey. We also noted that customers did not have to provide an address or declare their country of residence before the VAT was displayed for e-tickets. We therefore considered that the total ticket price including the booking fee, and inclusive of the UK rate of VAT, should have been made clear as soon as ticket prices were quoted.
We understood that there were four different postal delivery methods that viagogo used in the UK in addition to e-ticket download and collection. However, we understood that the buyer was not able to choose between those options, and that the only instance where the delivery fee changed after the buyer selected their address was when the buyer selected a delivery address outside of the UK. Therefore, while the UK delivery options varied depending on whether the ticket was a paper ticket or e-ticket, and on the time left until the event, we considered that information was available to viagogo at the beginning of the customer journey and it was therefore possible to calculate the cost of UK delivery in advance. As such, we considered that the ad should have made clear the applicable delivery fee for UK buyers.
Notwithstanding the above, we noted that the qualification “prices exclude booking and delivery fees” was placed below a significant amount of text, and only appeared very briefly at the top of the page for around two seconds at a time before it dropped down below the range of available tickets, where it could only be viewed by scrolling down. Therefore, we considered that the information about the additional fees was not prominent and was likely to have been overlooked by consumers before they made a transactional decision to proceed further. The qualification also did not make clear how the booking fee was calculated. Therefore, even if the fees could not have been calculated in advance, the ad would have breached the Code because it did not make sufficiently clear that the fees were excluded from the quoted price or make clear how the booking fee had been calculated.
Because the ad did not make clear the total ticket price including the booking fee, and did not make clear the applicable delivery fee, we concluded that the ad was misleading.
On that point, the ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising), 3.18 3.18 Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers. However, VAT-exclusive prices may be given if all those to whom the price claim is clearly addressed pay no VAT or can recover VAT. Such VAT-exclusive prices must be accompanied by a prominent statement of the amount or rate of VAT payable. and 3.20 3.20 Marketing communications that state prices must also state applicable delivery, freight or postal charges or, if those cannot reasonably be calculated in advance, state that such charges are payable. (Prices).
The paid-for search ad appeared on Google’s search listings and featured the headline claim “Ed Sheeran 2017 - Buy Now, viagogo Official Site - viagogo.co.uk”. The ad did not provide any information to indicate that viagogo.co.uk was not a primary ticket outlet, or that the website was a marketplace where second-hand tickets were bought and sold. We understood that the ad appeared on Google alongside primary ticket outlets and other second-hand ticket outlets after consumers searched for Ed Sheeran tickets. In that context, we considered that consumers were likely to understand the claim “official site” to mean that viagogo.co.uk was an official primary ticket outlet. We considered consumers would have more confidence buying from an “official site” than they would from a secondary ticket outlet, for example, because they would be more likely to be able to purchase tickets at face value and would be more certain that the tickets would allow them to gain entry into the relevant venue. Because viagogo was in fact a secondary-ticket outlet, we concluded that the claim was misleading. We welcomed viagogo’s removal of the claim from their advertising.
On that point, the ad breached CAP Code (Edition 12) rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
We considered that, in the absence of additional information regarding the nature of the guarantee and in combination with the claim to be an “official site”, consumers were likely to interpret the claim “100% Guarantee” in ad (b) to mean that, should they purchase the advertised Ed Sheeran tickets from the viagogo website, they would be certain to receive tickets that would arrive on time and allow them to gain entry into the relevant venue.
We understood that the claim was intended by viagogo to refer to a guarantee that buyers would receive valid tickets for the event or a comparable replacement ticket or refund. However, although viagogo appeared to offer a guarantee on customers receiving tickets, they were not able to guarantee that buyers would always be able to successfully gain entry to Ed Sheeran events. We noted the Ed Sheeran 2018 tour organisers had announced that no customers with tickets bought from a secondary-ticket outlet other than the official resale partner would be permitted to attend the advertised events. That meant that those who bought Ed Sheeran UK tickets from viagogo faced a real risk of not being able to gain entry to the relevant events.
Because the claim “100% Guarantee” suggested that consumers who bought viagogo tickets would be guaranteed to gain entry into an Ed Sheeran concert, when that was not the case, we concluded that the claim was misleading. We welcomed viagogo’s removal of the claim from their advertising.
On that point, the ad breached CAP Code (Edition 12) rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
The ads must not appear again in the form complained of. We told viagogo AG to ensure they made clear the total ticket price including the booking fee (inclusive of VAT), and made clear the applicable cost of UK delivery as soon as ticket prices were quoted. We told them to ensure in future they did not use the claim “100% Guarantee” when there was a reasonable risk that buyers might not be able to gain entry into an event. We also told them to ensure in future they did not use the claim “Official Site".