Anti-ticket touting: the campaign continues

12 December 2006

Max Duthie, Craig Giles

New anti-ticket touting legislation has just been passed in the UK. This puts us at the forefront of the worldwide fight against ticket touting, certainly in respect of football. But few interested parties will be resting on their laurels: there is still plenty to be done, both at home and abroad.

Changes to the law

The existing legislation (section 166 of the Criminal Justice and Public Order Act 1994, the CJPOA) has become increasingly outdated. Its focus is on isolated touts loitering outside football stadia on a Saturday afternoon, whereas modern touts are more sophisticated, and it is on the internet where the bulk of unauthorised sales are made. The Violent Crime Reduction Act 2006 (the 2006 Act) received Royal Assent on 8 November 2006. It covers a variety of subjects, including drinking banning orders, sales of alcohol to children, new firearms offences, new provisions on sexual offences and ASBOs. And in amongst all that are some critical improvements to the anti-ticket touting provisions in section 166 of the CJPOA, which are due to come into force during the first half of 2007.

Section 166 of the CJPOA applies to most professional football matches played in England and Wales. It currently makes it an offence, in relation to such matches, for an unauthorised person to “sell, or offer or expose for sale, a ticket … in any public place or place to which the public has access or, in the course of trade or business, in any other place.” It has been the subject of some debate whether this provision would catch unauthorised sales made on the internet, since that depends on whether the internet is a “public place” or (for commercial sales) “any other place”. And aside from that issue, the existing formulation arguably allows touts to give away tickets when bundled with another purchase (‘a baseball cap for £100 with a free City v United ticket thrown in’).

Under the 2006 Act, section 166 will be amended so that the offence covers not just selling, offering for sale and exposing for sale but also (i) making a ticket available for sale by another; (ii) advertising that a ticket is available for purchase; (iii) giving/offering a ticket to a person who agrees to pay for some other goods or services; and (iv) otherwise disposing of a ticket. There is no requirement that the sale, offer, exposure etc need occur in a ‘public place’ or ‘any other place’, which means there can be no argument that internet sales are not covered.

That will make it clear that the selling party will be caught by the new legislation. But if the sale is made via an auction site like Ebay, what about the host website – will they be caught as well? The short answer is yes, so long as they know what’s going on. The new section 166A essentially provides that in those circumstances online information service providers (including Ebay) will not commit an offence unless (a) they know that tickets are being sold illegally at the time the tickets are advertised or, (b) they become aware that tickets are being sold illegally but do not take immediate steps to remove the advertisements. Importantly, there will be no general duty for service providers to monitor for illegal tickets; the onus will be on the ticket issuer to notify the service providers of each infringement.

Criminal prosecutions

The new legislation will mean that the police and the Crown Prosecution Service ought to be in a stronger position to crack down on touting. And it is not just the CPS that has the powers to bring criminal prosecutions. Local authorities may authorise their respective Trading Standards services to bring enforcement proceedings against ticket touts under section 166 of the CJPOA. (This is in addition to the duty on such Trading Standards services to enforce consumer protection legislation against ticket touts, including where there has been a failure to inform customers of the face value of tickets and the location of seats).[1]

So, when the new legislation comes into force, an internet tout is more likely to be successfully prosecuted under section 166. But there has been no change to the penalty tariff applicable under section 166, and so the maximum fine remains at £5,000 (and fines have typically been as low as £500). That on its own might not be a sufficient deterrent for some of the sophisticated online operations (tickets for the Chelsea v Manchester United match in April 2007 are already being advertised by touts at prices in excess of £350 each). But if there were ways to get at the touts’ profits, that might make the touts more circumspect about what they do. One such way would be for the CPS to seek confiscation orders under the Proceeds of Crime Act 2002 (POCA), which would require convicted touts to pay an amount equal to the benefit they had made from the illegal sales.[2] Another way would be for the appropriate ticket issuers (the clubs, event organisers or governing bodies) to bring civil claims against the touts and seek awards of damages.[3] The relevant causes of action include breach of contract, inducement to breach, conversion, passing off, breach of statutory duty and threatened trespass.

An international approach

The passing of the new legislation is a considerable success for FIFA, UEFA, the FA and the FA Premier League who together lobbied hard to convince the government that the statute needed amending. And due to similar pressure from the Olympic movement, virtually identical provisions to those contained in the 2006 Act have already been enacted for the London 2012 Olympics.

And this latest strengthening of the football anti-ticket touting provisions comes relatively soon after the list of matches (to which the legislation is applied) was significantly extended. Previously, the CJPOA applied only to matches in which an English or Welsh side were actually competing, whereas since the passing of the Football Spectators (Prescription) (Amendment) Order 2006, it now covers all matches in a FIFA or UEFA tournament in which an English or Welsh side is competing (so it will cover the FIFA World Cup Final, even if England get knocked out in the quarter-finals).

Lord Pendry, the peer and former Sports Minister, described the new anti-ticket touting regime in the UK as “the most stringent laws against ticket touting anywhere in the world.” That might well be the case, and we should be rightly proud. But touts now operate in a global market, and where they are based out of the jurisdiction, the ability of the English criminal and civil courts to restrain their activity is compromised. Efforts need to be made to get all countries to adopt similar legislation so that there can be no hiding places.

José Luis Arnaut’s recent Independent European Sport Review (published in October 2006) identified a number of pressing concerns affecting European sport as a whole, and European football in particular. One of his recommendations in the review is that the European Commission and the EU member states enact an appropriate legal framework to combat ticket touting throughout Europe.

The new UK legislation does go some way towards addressing touting as a European problem: the new section 166A(2) of the CJPOA makes it an offence for an internet service provider established in the UK to sell tickets in another member state if to do so in the UK would be an offence here. But the time has come for other nations, in and out of Europe, to combat touting together. UEFA and FIFA were heavily involved in the process that led to the 2006 Act being passed, and they would like to see other countries adopt similar provisions, with the priorities being Austria and Switzerland for Euro 2008, and South Africa for the 2010 FIFA World Cup.

Self-help

Regardless of the merits of the relevant legislative framework, governing bodies and event organisers must take their own practical steps to help in the fight against touts. One issue that needs to be resolved in a sensible and effective way is the returns policy: allowing fans to return tickets to the original ticket issuer at face value in certain circumstances (eg where an illness means they cannot attend). For example, FIFA and the German organising committee at the 2006 FIFA World Cup established a website enabling supporters with unwanted tickets to return them for resale, but these types of scheme are not as common as they might be.

Another issue is how technology can be used to make touting more difficult. A number of FA Premier League clubs now have electronic smart cards covering the whole season rather than individual paper tickets for each match. Touting these is impractical (the ticket buyer would have to return the smart card to the tout after each match). At the 2006 FIFA World Cup, each ticket contained a radio frequency identification chip, which identified the purchaser by name, and meant that ticket holders could be turned away from the turnstiles if their identification did not match that of the original purchaser.

But it is not much good just having the right to turn people away: clubs and event organisers have to be prepared to be unpopular from time to time, cancelling tickets, refusing entry and ejecting ticket holders whose tickets were bought from touts. A number of FA Premier League clubs (like Chelsea FC) do this as a matter of routine. And Cricket Australia just cancelled 1,300 tickets for the Ashes series. It makes for a few disgruntled fans, but the message will soon get back to the touts, and the market will begin to diminish.

* * *

The UK has laid down a challenge to the touts by adopting a robust new regime, but the fight continues. If sport is to gain an upper hand then more needs to be done. The legislation ought really be amended further so that more meaningful penalties can be handed down for infringements and more sports events covered by the CJPOA. And more local authorities need to empower their respective Trading Standards services to bring prosecutions under the legislation. But, most of all, the UK’s lead needs to be followed in other countries so that the touts are left with nowhere from which to operate.

This article was first published in the World Sports Law Report






[1]See the Price Indication (Resale of Tickets) Regulations 1994, made under section 26 of the Consumer Protection Act 1987.



[2]The activities of touts might also constitute separate offences under the money laundering provisions of POCA (part 7).



[3]In the past, for example in cases brought by UEFA and the All England Lawn Tennis Club, such actions have been primarily focused on securing injunctions to prevent the touts from carrying on business.

Authors