Australian Competition and Consumer Commission v viagogo AG (No 3)
[2020] FCA 1423
•2 October 2020
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v viagogo AG (No 3) [2020] FCA 1423
File number: NSD 1489 of 2017 Judgment of: BURLEY J Date of judgment: 2 October 2020 Catchwords: CONSUMER LAW – misleading or deceptive conduct – false or misleading representations relating to price – part-price representation – remedies – declarations – pecuniary penalties – principles relevant to imposition of a penalty – injunctions – principles relevant to imposition of an injunction – publication orders – compliance program orders Legislation: Competition and Consumer Act 2010 (Cth) s 137H(3)
Competition and Consumer Act 2010 (Cth) Schedule 2, ss 18, 29, 34, 48, 224, 232, 246
Evidence Act 1995 (Cth) s 135(a)
Federal Court of Australia Act 1976 (Cth) s 21
Trade Practices Act 1974 (Cth) s 80
Convention on the Service Abroad of Judicial and Extrajudicial documents in Civil or Commercial Matters, done at the Hague on 15 November 1965
Cases cited: ACCC v AirAsia Berhad [2012] FCA 1413
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68
Australian Competition and Consumer Commission v Cement Australia Ltd [2017] FCAFC 159; 258 FCR 312
Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540
Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513
Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2) [2020] FCA 724
Australian Competition and Consumer Commission v Meriton Property Services Ltd (No 2) [2018] FCA 1125
Australian Competition and Consumer Commission v On Clinic Australia Pty Limited [1996] FCA 721; 35 IPR 635
Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc [1999] FCA 1387; 95 FCR 114
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25
Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No2) [2012] FCA 629; ATPR ¶42-402
Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; ATPR ¶42-450
Australian Competition and Consumer Commission v Valve Corporation (No 7) [2016] FCA 1553
Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544
Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243
Australian Consumer and Competition Commission v 4WD Systems Pty Ltd [2003] FCA 850; 200 ALR 491
Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306
BMW Australiav Australian Competition and Consumer Commission [2004] FCAFC 167; 207 ALR 452
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482
Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68
ICI Australia Operations Pty Limited v Trade Practices Commission [1992] FCA 707; 38 FCR 248
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; 166 CLR 59
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285
Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249
TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; 210 FCR 277
Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 403; 4 FCR 296
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 148 Date of hearing: 24 April 2020 Counsel for the Applicant: Dr K. Stern SC with Ms V. R. Brigden Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Ms K. C. Morgan SC with Ms S. Palaniappan Solicitor for the Respondent: MinterEllison ORDERS
NSD 1489 of 2017 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND: VIAGOGO AG
Respondent
ORDER MADE BY:
BURLEY J
DATE OF ORDER:
2 OCTOBER 2020
THE COURT DECLARES THAT:
Official Site Representation
1.During the period 1 May 2017 to 26 June 2017, the Respondent:
(a)by using the phrase “Buy Now, viagogo Official Site” in its advertisements on Google, and
(b)by failing to disclose, or adequately disclose in its advertisements that it was not a primary ticket seller,
represented to consumers located in Australia (Consumers) that:
(c)they could purchase official original (i.e. not resold) tickets through (the viagogo Australian website); and/or
(d)the Respondent had the sponsorship of, approval from, or was affiliated with, the relevant team, musician, entertainer or event promoter, organiser or venue (Host) as an “official” agent of the Host to sell original (i.e. not resold) tickets to the Host’s event(s) directly to the public;
when, in fact:
(e)the tickets available from the viagogo Australian website were being resold via an online secondary ticketing platform; and/or
(f)the Respondent did not have any such sponsorship, approval or affiliation;
and thereby:
(i)in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth);
(ii)in trade or commerce, engaged in conduct that was liable to mislead the public as to the nature of the services the Respondent provided, in contravention of s 34 of the Australian Consumer Law; and
(iii)in trade or commerce, in connection with the supply or possible supply of services or in connection with the promotion of that supply of services, made false or misleading representations that the Respondent had the sponsorship, approval or affiliation of a Host in contravention of s 29(1)(h) of the Australian Consumer Law.
Quantity Representations
2.During the period 1 May 2017 to 26 June 2017, by making statements such as the following (where “X” is a variable number):
(a)“Less than [X]% of tickets left for this event”;
(b)“Less than [X]% tickets remaining”;
(c)“Only [X]% of tickets left”;
(d)“Tickets are likely to sell out soon”;
(e)“Only a few tickets left”;
(f)“Only [X] tickets left”;
(g)“LAST CHANCE!”; and
(h)“Tickets for this event are selling fast”
in circumstances where the Respondent did not adequately disclose that the references to the number or percentage of tickets still available for any of the events were references to the number or percentage of tickets available for purchase through the viagogo Australian website only, and not for the venue as a whole, the Respondent:
(i)in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law; and
(ii)in trade or commerce, engaged in conduct that was liable to mislead the public as to the quantity of tickets available to events advertised on the viagogo Australian website, in contravention of s 34 of the Australian Consumer Law.
Total Price Representation
3.During the period 1 May 2017 to 26 June 2017, the Respondent, by making representations on the “Tickets and Seating Selection Page” of the viagogo Australian website that a Consumer could purchase tickets for the amount stated on that webpage, when, in fact, Consumers could not purchase tickets for the amounts stated on that webpage because Consumers had to pay additional fees:
(a)in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer law; and
(b)in trade or commerce, in connection with the supply or possible supply of services, made false or misleading representations with respect to the price at which Consumers could acquire event tickets through the viagogo Australian website, in contravention of s 29(1)(i) of the Australian Consumer Law.
4.On 18 May 2017, the Respondent, by making representations on the “Tickets and Seating Selection Page” of the viagogo Australian website that a Consumer could purchase:
(a)a ticket for a seat in the Grand Circle section at the Princess Theatre in Melbourne to see a performance of the musical “The Book of Mormon” on Saturday, 20 May 2017 through the viagogo Australian website for A$135 per ticket;
(b)three tickets for seats in the Bronze section of the Gabba cricket ground in Brisbane to attend the Ashes cricket test match on Sunday, 26 November 2017 through the Viagogo Australian website for A$110.05 per ticket;
(c)two tickets for seats in the Upper Tier section at Rod Laver Arena in Melbourne to attend a Cat Stevens concert on Monday, 27 November 2017 through the viagogo Australian website for A$225 per ticket;
when, in fact, a Consumer could not purchase any of those tickets from the viagogo Australian website for the relevant prices because Consumers had to pay additional fees:
(i)in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law; and
(ii)in trade or commerce, in connection with the supply or possible supply of services, made false or misleading representations with respect to the price at which Consumers could acquire each of the tickets referred to in (a), (b) and (c) above through the viagogo Australian website, in contravention of s 29(1)(i) of the Australian Consumer Law.
Part Price Representation
5.On 18 May 2017, the Respondent, in trade or commerce, in connection with the supply or possible supply to another person of goods or services of a kind ordinarily acquired for personal or household use or consumption, by stating on the “Delivery Page” of the viagogo Australian website a price for each of the tickets in declaration 3 that excluded further fees payable, without also specifying, in a prominent way and as a single figure, the price for each of those tickets that included the additional fees payable, made a part-price representation in contravention of s 48(1) of the Australian Consumer Law.
THE COURT ORDERS THAT:
Injunction
6.Pursuant to s 232 of the Australian Consumer Law for a period of five years from the date of this order the Respondent, whether by itself, its officers, employees, agents or otherwise howsoever, be restrained, in the course of the supply or possible supply of services to Consumers for the sale of tickets on the viagogo Australian website, from representing, in trade or commerce, that:
(a)Consumers can purchase official original (i.e. not resold) tickets through the viagogo Australian website, when that is not the case;
(b)the Respondent is affiliated with or has approval from a particular Host as an “official” agent of the Host to sell original (i.e. not resold) tickets to the Host’s event(s) directly to the public, when that is not the case;
(c)Consumers can purchase tickets for a stated price on a webpage on the viagogo Australian website when they cannot do so without paying further fees to purchase the tickets;
(d)Consumers can purchase tickets for a stated price on a webpage on the viagogo Australian website which exclude further fees payable without also specifying, in a prominent way and as a single figure, the price for each of those tickets including the additional fees payable; or
(e)Only a set number or percentage of tickets are available without expressly stating that the reference to tickets is to those available for purchase through the viagogo Australian website and not the total number or percentage of tickets remaining for the event.
Pecuniary Penalties
7.Pursuant to s 224(1)(a)(ii) of the Australian Consumer Law, within 30 days of the date of this order, the Respondent pay to the Commonwealth of Australia pecuniary penalties in the amounts of:
(a)A$2.5 million in respect of the Respondent’s contravention of ss 29(1)(h) and 34 of the Australian Consumer Law set out in the declaration at paragraph 1 above;
(b)A$2.5 million in respect of the Respondent’s contravention of s 34 of the Australian Consumer Law set out in the declaration at paragraph 2 above;
(c)A$1.5million in respect of the Respondent’s contraventions of s 29(1)(i) of the Australian Consumer Law set out in the declarations at paragraphs 3 and 4 above; and
(d)A$500,000 in respect of the Respondent’s contravention of s 48(1) of the Australian Consumer Law set out in the declaration at paragraph 5 above.
Compliance Program
8.Pursuant to s 246(2) of the Australian Consumer law, the Respondent is:
(a)within 90 days of this order, to establish and implement an Australian Consumer Law Compliance Program to be undertaken by each employee of the Respondent or other person involved in the Respondent’s business who deals or who may deal with Consumers, being a program designed to minimise the Respondent’s risk of future contraventions of ss 18, 29, 34 and 48 of the Australian Consumer Law in relation to the sale of tickets on the viagogo Australian website; and
(b)for a period of 3 years from the date of this order, maintain and continue to implement the Australian Consumer Law Compliance Program referred to in order 8(a) above.
Costs
9.The Respondent pay the ACCC’s costs of these proceedings as agreed or as assessed.
Further Order
10.A copy of the reasons for judgment, with the seal of the Court affixed thereon, be retained on the Court file for the purposes of s 137H of the Competition and Consumer Act 2010 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 INTRODUCTION
[1]
1.1 The issues
[1]
1.2 Viagogo’s contravening conduct
[6]
2 THE EVIDENCE
[15]
3 THE CONFIDENTIAL INFORMATION FROM VIAGOGO
[23]
4 DECLARATIONS
[29]
5 PENALTY
[31]
5.1 Relevant law on penalty
[31]
5.2 The Submissions
[48]
5.3 Consideration
[55]
5.3.1 Nature, duration and extent of the contravening conduct: s 224(2)(a)
[55]
5.3.1.1 The Official Site Representation
[55]
5.3.1.2 The Quantity Representations
[64]
5.3.1.3 The Total Price Representation
[70]
5.3.1.4 The Part Price Representation
[72]
5.3.2 Loss or damage caused: s 224(2)(b)
[73]
5.3.3 Prior similar conduct: s 224(2)(c)
[83]
5.3.4 Circumstances of the contraventions: s 224(2)
[84]
5.3.4.1 Size, financial position and benefits
[84]
5.3.4.2 Deliberateness
[91]
5.3.4.3 Role of senior management
[101]
5.3.4.4 Corporate culture conducive to compliance
[105]
5.3.4.5 Co-operation with the ACCC
[110]
5.3.4.6 Changes made to the viagogo Australian website
[113]
5.4 Assessment of penalty
[117]
5.4.1 Totality
[125]
5.4.2 Parity
[126]
6 INJUNCTIONS
[129]
7 PUBLICATION ORDERS
[140]
8 COMPLIANCE PROGRAM ORDERS
[146]
9 DISPOSITION
[148]
BURLEY J:
1. INTRODUCTION
1.1 The issues
In Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544 (liability judgment) I concluded that viagogo had engaged in conduct that contravened ss 18(1), 29(1)(h), 29(1)(i), 34 and 48(1) of the Australian Consumer Law (ACL) (Schedule 2 of the Competition and Consumer Act 2010 (Cth)). These reasons assume familiarity with the liability judgment.
The parties agree on the form of declarations that should be made following the liability judgment, but disagree on other aspects of the orders to be made. The Australian Competition and Consumer Commission (ACCC) submits that the pecuniary penalty to be paid by viagogo pursuant to s 224(1)(a)(ii) of the ACL should be in the range of $12.1 to $13.4 million. Viagogo contends that the penalty should be no more than $3 million.
The ACCC further contends that the Court should:
(a)grant injunctions restraining viagogo from engaging in the impugned conduct;
(b)make orders pursuant to s 246(2)(a) to (d) of the ACL that viagogo publish, amongst other things, information about the findings of the Court on its website;
(c)engage in a compliance program; and
(d)pay the ACCC’s costs of the proceedings.
Viagogo opposes the making of orders in relation to (a) and (b), but not (c) and (d).
In the reasons that follow I have determined: that the appropriate penalty in respect of viagogo’s contravening conduct is $7 million; that in addition to the agreed declarations it is appropriate to grant an injunction restraining viagogo from engaging in the impugned conduct; that viagogo must participate in a compliance program; and that viagogo must pay the ACCC’s costs of the proceedings.
1.2 Viagogo’s contravening conduct
In the liability judgment I found that viagogo had engaged in four contraventions. The first arose from the “Official Site Representation” that appeared in sponsored advertisements (viagogo ad) that viagogo placed with Google. The conduct was found to have taken place during the relevant period which was 57 days from 1 May 2017 until 26 June 2017. The viagogo ad appeared as the first result when a person searched Google using the name of an event or performance. Upon clicking on the link provided by viagogo in the advertisement, the consumer was taken to the viagogo Australian website ( The viagogo Australian website is viagogo’s virtual shopfront in Australia. It is the place where consumers see what it has on offer and, by navigating through it, can learn about available tickets for specified events and then acquire them. Samples of the viagogo ad and an overview of the manner in which the viagogo Australian website is navigated are set out in section 3 of the liability judgment.
The conclusion reached in the liability judgment in relation to the Official Site Representation is conveniently summarised in the form of declaration that will be made:
During the period from 1 May 2017 to 26 June 2017, viagogo:
(a)by using the phrase “Buy Now, viagogo Official Site” in its advertisements on Google, and
(b) by failing to disclose, or adequately disclose in its advertisements that it was not a primary ticket seller,
represented to consumers located in Australia (Consumers) that:
(c) they could purchase official original (i.e. not resold) tickets through the viagogo Australian website; and/or
(d) viagogo had the sponsorship of, approval from, or was affiliated with, the relevant team, musician, entertainer or event promoter, organiser or venue (Host) as an “official” agent of the Host to sell original (i.e. not resold) tickets to the Host’s event(s) directly to the public;
when, in fact:
(e) the tickets available from the viagogo Australian website were being resold via an online secondary ticketing platform; and/or
(f) viagogo did not have any such sponsorship, approval or affiliation;
and thereby:
(i) in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL;
(ii) in trade or commerce, engaged in conduct that was liable to mislead the public as to the nature of the services viagogo provided, in contravention of s 34 of the ACL;
(iii) in trade or commerce, in connection with the supply or possible supply of services or in connection with the promotion of that supply of services, made false or misleading representations that viagogo had the sponsorship, approval or affiliation of a Host in contravention of s 29(1)(h) of the ACL.
The remaining contraventions arose from the content of the viagogo Australian website. In section 3.3.2 of the liability judgment I described the process by which a consumer interacted with the nine web pages on the viagogo Australian website and ultimately purchased tickets. I concluded in section 3.4 at [75]:
... Each of the webpages is rich in information and provides access to additional information by clicking on links available. None of the pages can be seen in its entirety on a single screen or device likely to be used by the ordinary consumer. The consumer is directed to select links that meet his or her desire in terms of ticket acquisition. As one moves through the process, the website encourages, with increasing urgency, the consumer to advance through the acquisition so that the opportunity to acquire the desired tickets is not lost. This process has the effect, if not the design, of distracting the consumer from content that is available (or that might be available by following other links) beyond that which is immediately needed to progress through the site, and corralling him or her towards speedy completion of the purchase. The use of an interactive website is to be contrasted with other media by which goods or services are promoted and sold. In the present case the website serves the function of both promoting the sale of tickets and also enabling a consumer to enter the transaction. The consumer is drawn not only into a marketing web, but also into a transactional web. The site encourages the consumer to commit to a transaction; he or she selects the event of interest, then in the Tickets and Seating Selection Page is invited to choose the desired number of tickets and, once selected, commit (or at least signify an interest in doing so) to “Buy” them for a nominated price. At each stage the consumer is assured that tickets are running short, that time is running out to buy, and that the tickets that they have selected will soon be released to other, competing purchasers. The increasing urges to completion and the “hurry up” messages create such an impression that the consumer is at risk of missing out on tickets, that he or she is likely increasingly to confine attention to only that information necessary to enter details and complete the transaction.
The second contravention arose from the “Quantity Representations” and concerned the quantity of tickets that viagogo said that it had available for sale. In short, viagogo misrepresented on its website that the seats remaining for sale were the seats available for the event or performance at the venue, when in fact they were only the seats that viagogo had available for sale via its website.
The declaration that I will make is in the following form, and again captures the conclusion that I reached:
During the period 1 May 2017 to 26 June 2017, by making statements such as the following (where “X” is a variable number):
(a) “Less than [X]% of tickets left for this event”;
(b) “Less than [X]% tickets remaining”,
(c) “Only [X]% of tickets left”;
(d) “Tickets are likely to sell out soon”;
(e) “Only a few tickets left”;
(f) “Only [X] tickets left”;
(g) ‘'LAST CHANCE!”; and
(h) “Tickets for this event are selling fast”
in circumstances where viagogo did not adequately disclose that the references to the number or percentage of tickets still available for any of the events were references to the number or percentage of tickets available for purchase through the viagogo Australian website only, and not for the venue as a whole, viagogo:
(i)in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL; and
(ii) in trade or commerce, engaged in conduct that was liable to mislead the public as to the quantity of tickets available to events advertised on the viagogo Australian website, in contravention of s 34 of the ACL.
The third contravention arose from what was defined in the liability judgment as the “Total Price Representation”. The effect of the representation is that viagogo falsely represented on the “Tickets and Seating Selection Page”, that the price displayed was the total price, when in fact further fees were charged.
The two declarations that I will make capture my conclusions in relation to liability for the Total Price Representation. The first declaration is as follows:
During the period 1 May 2017 to 26 June 2017, viagogo, by making representations on the “Tickets and Seating Selection Page” of the viagogo Australian website that a Consumer could purchase tickets for the amount stated on that webpage, when in fact Consumers could not purchase tickets for the amounts stated because they had to pay additional fees:
(a) in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL; and
(b) in trade or commerce, in connection with the supply or possible supply of services, made false or misleading representations with respect to the price at which Consumers could acquire event tickets through the viagogo Australian website, in contravention of s 29(1)(i) of the ACL.
The second declaration that I will make concerns the same conduct and relates to the total price for three specific transactions that occurred on 18 May 2017.
The fourth contravention arose from the “Part Price Representation” and concerned the content of the “Delivery Page”. It is confined to the three transactions that occurred on 18 May 2017. The declaration that I will make again captures the conclusions that I have reached:
On 18 May 2017, viagogo, in trade or commerce, in connection with the supply or possible supply to another person of goods or services of a kind ordinarily acquired for personal or household use or consumption, by stating on the “Delivery Page” of the viagogo Australian website a price for each of the three 18 May 2017 transactions that excluded further fees payable without also specifying, in a prominent way and as a single figure, the price for each of those tickets that included the additional fees payable, made a part-price representation in contravention of s 48(1) of the ACL.
2. THE EVIDENCE
In support of its case on relief and penalty, the ACCC relies on identified parts or the whole of the affidavits of Mr Aherne, Ms Bolding, Ms Burke, Mr McDowell and Ms Symons, whose evidence was also read at the liability hearing. It also relies on an affidavit of Kerri Lyn McKeon sworn on 13 August 2019, an affidavit of Yasmin Murry affirmed on 13 August 2019 and an affidavit sworn by Frances Millicent Williams on 5 August 2019.
Ms McKeon is Acting Director of Enforcement Queensland and Northern Territory for the ACCC. She gives evidence of video captures that she made of the viagogo Australian website on 12 August 2019. In them, she recorded the booking process for two tickets to a concert to be given by Elton John at the Brisbane Entertainment Centre on 18 December 2019 (Elton John video capture) and for four tickets to a concert to be given by Fleetwood Mac at the same venue on 24 August 2019 (Fleetwood Mac video capture). She also gives evidence that after the end of the relevant period, from 27 June 2017 until 19 June 2019, the ACCC received a total of 1,990 complaints in relation to viagogo concerning each of the representations as found in the liability judgment. In [16] of her affidavit Ms McKeon exhibits copies of examples of these complaints. Objection is taken to these examples. I explain why I have rejected that paragraph in [108] of these reasons.
Ms Murry is a Senior Analyst employed by the ACCC. She gives evidence of video captures that she recorded on 5 June 2019 of the booking process for two tickets to Queen and Adam Lambert at AAMI Park, Melbourne to be held on 19 February 2020 (Queen video capture) and also for two tickets to the Ashes at Lord’s Cricket Ground in London to be held on 14 August 2019 (Lord’s video capture).
Images taken from the video captures made by Ms McKeon and Ms Murry were separately in evidence.
Ms Williams is a partner of Corrs Chambers Westgarth, the solicitors for the ACCC. She gives evidence in relation to the ACCC’s requests for information and the provision of documents by viagogo pursuant to orders that I made on 5 June 2019.
Viagogo relies on an affidavit affirmed by Jihan Al-Saleh, a lawyer at MinterEllison, the solicitors for viagogo, on 10 September 2019. She gives evidence of changes made to the viagogo Australian website following the liability judgment, and a video capture made on 10 September 2019 of the booking process for two tickets to the La Dispute concert at 170 Russell, Melbourne (La Dispute video capture).
Viagogo also relies on an affidavit sworn on 23 April 2020 by Katrina Mary Groshinski, a partner at MinterEllison, who refers to what she describes as “ACL training slides” that her firm prepared to address compliance issues associated with the ACL. She gives no admissible evidence as to what, if anything, was done with these by viagogo.
The materials relied upon by the parties also included Exhibit 3 from the liability hearing, which was the image capture booklet from the various video captures in evidence.
3. THE CONFIDENTIAL INFORMATION FROM VIAGOGO
In the course of preparation for the hearing in relation to penalty, viagogo supplied the ACCC with information providing details of the operation of the viagogo Australian website and in relation to its business. Such information is confidential to viagogo and has been the subject of a suppression order and where reproduced in the published form of these reasons has been redacted. I summarise some of the information below. Although viagogo provided the confidential information in United States dollars, unless otherwise stated, dollar amounts set out in these reasons are in Australian dollars determined using the average United States to Australian dollar exchange rate over the relevant period.
During the relevant period XXXXX X clicks were recorded on advertisements that included the phrase “Buy Now, viagogo Official Site”, where the user was taken to the viagogo Australian website. During the relevant period XXXXX transactions were completed on the viagogo Australian website as a result of clicks on these advertisements. This information is to be read with three qualifications: first, that the transaction may not necessarily be related to an event that occurred in Australia; secondly, that it is not necessarily the case that only consumers in Australia were directed to the Australian website; and, thirdly, that the data relates to clicks rather than unique visitors. A single user may have clicked on multiple advertisements during the relevant period. I take these qualifications into account in my consideration of penalty.
The total number of transactions on the viagogo Australian website during the relevant period was XXXXX , the total number of tickets sold was XXXXX , the total value of those tickets including the viagogo fees was about $XXXXX X and the value of the tickets without the fees was about $XXXXX X.
Viagogo’s worldwide total revenue in the calendar year 2017 was $XXXXX XXXX and its gross profit was $XXXXX XXXX.
Viagogo’s total revenue from consumer transactions on its Australian website during the relevant period was $XXXXX X being the viagogo fees plus shipping charges. Viagogo’s profit from transactions on the website during the relevant period was said in a document dated 8 August 2019 to be about $XXXXX X. In a communication dated 21 August 2019 the profit was said to be $XXXXX XX. This discrepancy was explained by viagogo in a communication dated 9 September 2019 as being as a result of the difference between the viagogo group’s consolidated financials as opposed to viagogo AG’s financials (which the ACCC requested). The larger figure, which is said to be correct, does not include certain expenses which were recharged to the Swiss operating subsidiary. There is no transparency as to the manner in which either profit figure for viagogo has been calculated. Without more information as to the basis for its calculation, I am not satisfied that either figure represents an accurate indication of profit earned.
Viagogo conducted a manual review of its records and reports that it received XXX “contacts” that “raised concerns including as to the matters addressed in the liability proceedings” from consumers who purchased tickets during the relevant period on the viagogo Australian website. Of those, XXX received no redress and XXX received a refund or another form of compensation, such as a replacement ticket, a partial refund or a chargeback. In some cases a consumer received more than one form of compensation in respect of the same transaction. The total value of compensation provided to consumers is $XXXXX X. That figure excludes instances where a consumer received a replacement ticket.
4. DECLARATIONS
The parties have agreed that declarations should be made, and have agreed as to their form. Nevertheless it is for the Court to decide whether this relief is appropriate. The broad discretionary power to make declarations of right is conferred on the Court by s 21 of the Federal Court of Australia Act 1976 (Cth). That power will generally be properly exercised when the question in issue is real and not theoretical, when the person raising the question has a real interest in raising it, and where there is a proper contradictor: see Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306 at [110] (Yates J).
For the reasons set out in the liability judgment, I am satisfied that these requirements are met in the present case, as are the facts necessary to underpin each declaration.
5. PENALTY
5.1 Relevant law on penalty
Each of ss 29, 34 and 48 is within Part 3-1 of the ACL and accordingly is a pecuniary penalty provision: s 224(1)(a)(ii). In the liability judgment, I have found that each of the representations contravenes one or more of these provisions. The Court may order the person contravening those provisions to pay such pecuniary penalties in respect of each act or omission as the Court determines appropriate.
As a corporate respondent, the maximum penalty that may be imposed on viagogo for each contravention of ss 29, 34 and 48 during the relevant period was $1.1 million: s 224(3), item 2.
The High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 confirmed (at [55] per French CJ, Kiefel, Bell, Nettle and Gordon JJ) that the principal purpose in the imposition of a civil penalty is the capacity to deter so as to promote the public interest in compliance. The targets of such deterrence are both the contraveners before the Court and any other would-be contraveners, the dichotomy being between specific and general deterrence: Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2) [2020] FCA 724 at [21] (Bromwich J).
In relation to offences of calculation by a corporation, the punishment must be fixed with a view to ensuring that the penalty is not such as to be regarded by the offender or others as an acceptable cost of doing business. Those engaged in trade and commerce must be deterred from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [62] – [63] (Keane CJ, Finn and Gilmour JJ).
One factor of the need for deterrence arises where there is a potential distortion of competition in the market on the part of the contravener, who gains an unfair advantage over competitors who complied with the law: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [149] (Jagot, Yates and Bromwich JJ). As the Full Court said in that case at [151]:
All others [sic] things being equal, the greater the risk of consumers being misled and the greater the prospect of gain to the contravener, the greater the sanction required, so as to make the risk/benefit equation less palatable to a potential wrongdoer and the deterrence sufficiently effective in achieving voluntary compliance. Tipping the balance of the risk/benefit equation in this way is even more important when the benefit in contemplation is profit or other material gain. It is especially important if there are disadvantages, including increased costs or lesser sales or profits, in complying with legal obligations for those who “decide” to be law-abiding.
Section 224(2) of the ACL requires that in determining the appropriate pecuniary penalty, the Court has regard to all relevant matters including:
(a)the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and
(b)the circumstances in which the act or omission took place; and
(c)whether the person has previously been found by a court in proceedings under Chapter 4 or Part 5-2 to have engaged in any similar conduct.
Section 224(4) provides:
(4)If conduct constitutes a contravention of 2 or more provisions referred to in subsection (1)(a):
(a) a proceeding may be instituted under this Schedule against a person in relation to the contravention of any one or more of the provisions; but
(b) a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
Relevant factors beyond those specifically identified in s 224(2) ACL have been identified in numerous cases. In Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 Allsop CJ said at [8]:
A convenient summary of the other matters that will usually be relevant in such cases can be found in the judgment of Perram J in Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; 282 ALR 246 at 250 [11]:
(1) The size of the contravening company.
(2) The deliberateness of the contravention and the period over which it extended.
(3) Whether the contravention arose out of the conduct of senior management of the contravener or at some lower level.
(4) Whether the contravener has a corporate culture conducive to compliance with the Act (or the new Australian Competition and Consumer Law) as evidenced by educational programmes and disciplinary or other corrective measures in response to an acknowledged contravention.
(5) Whether the contravener has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention.
(6) Whether the contravener has engaged in similar conduct in the past.
(7) The financial position of the contravener.
(8) Whether the contravening conduct was systematic, deliberate or covert.
These matters are not exhaustive, and may overlap: see, for instance, TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; 210 FCR 277 at [140] – [141] (Jacobson, Bennett and Gilmour JJ). In general terms, the factors that may be relevant when fixing a pecuniary penalty may conveniently be categorised according to whether they relate to the objective nature and seriousness of the offending conduct, or concern the particular circumstances of the contravener in question: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 (ABCC Case) (Dowsett, Greenwood and Wigney JJ) at [102]. As the Full Court said in that case:
[103] The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.
[104] The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.
In the ABCC Case the Full Court provided a summary of the process for determining civil penalties (at [98], [100] – [107]). In relation to the general task and the often cited “instinctive synthesis” required, the Full Court said at [100]:
The fixing of a pecuniary penalty involves the identification and balancing of all the factors relevant to the contravention and the circumstances of the defendant, and making a value judgment as to what is the appropriate penalty in light of the protective and deterrent purpose of a pecuniary penalty. While there may be differences between the criminal sentencing process and the process of fixing a pecuniary penalty (cf. Commonwealth v Director, FWBII at 491 [56]-[57]), the fixing of a pecuniary penalty may to an extent be likened to the “instinctive synthesis” involved in criminal sentencing: TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 at 294. Instinctive synthesis is the “method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”: Markarian v The Queen (2005) 228 CLR 357 at 378 [51] (per McHugh J). Or, as the plurality put it in Markarian (at 374 [37], per Gleeson CJ, Gummow, Hayne and Callinan JJ) “the sentencer is called on to reach a single sentence which … balances many different and conflicting features”. Like the exercise of imposing a sentence for an offence, the process of fixing an appropriate pecuniary penalty should not be approached as a mathematical exercise involving increments to or decrements from a predetermined range of sentences: Wong v The Queen (2001) 207 CLR 584 at 611-612 [74]-[76].
The totality principle and the course of conduct principle are both relevant to the present case. It is also a fundamental principle of sentencing that double punishment should be avoided for the commission of multiple offences. Section 224(4) provides that a person is not liable for more than one pecuniary penalty in respect of the same conduct.
Each of the representations were made numerous times. A contravention occurs each time a false representation is made in breach of one of the relevant provisions of the ACL: Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; ATPR ¶42-450 at [23] (Tracey J); Coles Supermarkets at [17]. There is no dispute between the parties that the number of individual contraventions was so great in the present case (numbering many thousands of clicks on the viagogo ad and the website pages) such that if they were taken as an approximation of the number of instances a consumer saw each representation, to multiply the number of contraventions by the maximum penalty of $1.1 million per offence would be impractical and wrong: see Reckitt at [157].
The course of conduct principle is commonly referred to as the recognition that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality: Australian Competition and Consumer Commission v Cement Australia Ltd [2017] FCAFC 159; 258 FCR 312 at [421] (Middleton, Beach and Moshinsky JJ). The interrelationship may be legal, in the sense that it arises from the elements of the contraventions. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of essentially the same act, omissions or circumstances: Cement Australia at [422], citing Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 at [22]. In Cement Australia the Full Court noted at [423] that the Court must be cautious in the application of the course of conduct principle in a civil penalty context, given it uses the language of the criminal law. Nevertheless, the course of conduct principle is, as the Court noted at [424], commonly employed and is a useful tool in the determination of appropriate civil penalties.
The Court is not limited to ordering a penalty fixed by the number of courses of conduct established. A course of conduct may attract a maximum penalty which exceeds the maximum penalty for an individual contravention: Coles Supermarkets at [15], [16] and [20]. In Reckitt at [157], the Full Court noted that the theoretical maximum was in the trillions of dollars given that there were over 5 million contraventions. Accordingly, the appropriate range for penalty was best assessed by reference to other factors, there being no meaningful maximum. See also Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 at [231] and [234] (Allsop CJ, Middleton and Robertson JJ).
In addition to the foregoing, the totality principle requires the Court to consider the entirety of the underlying contravening conduct to determine whether the total or aggregate penalty is appropriate: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8] – [9].
Viagogo places considerable emphasis on the parity principle, which requires that persons or corporations guilty of similar contraventions should incur similar penalties and that “there should not be such an inequality as would suggest that the treatment meted out has not been even-handed”: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 at 295 (Burchett and Kiefel JJ, with whom Carr J agreed at 299). The ACCC submits that caution should be exercised in this regard.
In Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 Gleeson J said at [55]:
By application of the parity principle, assessments of penalty in analogous cases may provide guidance to the Court to ensure that there is parity of treatment of similar circumstances. However, as Hill J observed in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192; (2002) 201 ALR 618 at [34], “while pecuniary penalties imposed in one case provide a guide, that guide will seldom, if ever, be able to be used mechanically”. Furthermore, “other things are rarely equal where contraventions of the [TPA] are concerned”: NW Frozen Foods at 295. In Singtel at [60], the Full Court observed that:
…the Court is not assisted by… citation[s] of penalties imposed in other cases, where the combination of circumstances were different from the present, as if that citation is apt to establish a “range” of penalties appropriate in this case.
5.2 The Submissions
The parties each addressed the mandatory considerations under s 224(2) of the ACL and a number of other circumstances said to be relevant to the assessment of penalty. The ACCC emphasised that a contravention occurred every time a consumer saw a representation. Having regard to the number of clicks on the viagogo ad and the transactions completed via the viagogo Australian website, the ACCC submits that there were an exceedingly large number of contraventions. The theoretical maximum penalty for each contravention is $1.1 million pursuant to s 224(3), item 2 of the ACL. Accordingly, the ACCC submits that the maximum penalty in the present case is “effectively limitless”.
The ACCC submits that each of the four contraventions should be considered to be a separate course of conduct. It makes specific submissions directed to the following factors: (a) the nature, extent and duration of the conduct; (b) the deliberateness of the conduct; (c) the loss or damage caused; (d) the size and financial position of viagogo, and the benefits to viagogo of the conduct; (e) the role of senior management; (f) prior similar conduct; (g) whether there is a corporate culture conducive to compliance; and (h) co-operation with the ACCC. I outline the ACCC’s submissions in relation to those factors in section 5.3 below.
The ACCC submits that having regard to each of these matters the appropriate penalty in total should be between $12.1 and 13.4 million, where the penalty for the course of conduct arising from the Official Site Representations should be between $4 to 4.5 million, the penalty arising from the Quantity Representations should be between $3.5 to 4 million, the penalty arising from the Total Price Representations should be between $2.95 to 3.25 million, and the penalty arising from the Part Price Representations should be $1.65 million.
Viagogo disputes the ACCC’s submission that, having regard to the number of contraventions and the statutory maximum, the maximum penalty is “effectively limitless”. It submits that the Full Court in Reckitt rejected as inappropriate an attempt to calculate the number of contraventions in terms of the number of representations and instead concluded that the penalty is best assessed by reference to other factors. Viagogo engages with and disputes factual matters and points of emphasis arising from each of the factors raised in the submissions made by the ACCC. It also submits that changes it has made to the viagogo Australian website after the liability judgment is a factor to be taken into account in the assessment of penalty. I outline viagogo’s submissions in relation to those factors in section 5.3 below.
Viagogo submits that a course of conduct approach has limited utility, but if it is adopted then each of the representations should be considered to amount to only one multi-faceted course of conduct, citing Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No2) [2012] FCA 629; ATPR ¶42-402 (TPG Internet (No 2)) at [71] (Murphy J). Viagogo emphasises the importance of parity of outcome to achieve consistency across similar cases. It submits that the contraventions do not relate to an extended period of time, nor to conduct which could be characterised as deliberate, predatory or unconscionable, or on the very serious end of contraventions. Nor, it submits, may the Court infer that all purchasers of tickets in the relevant period were affected by the conduct and would have been able to find alternative tickets or if not, would have preferred not to attend the live event at all.
Viagogo submits that the Total Price Representations and Part Price Representations should be considered together as one course of conduct, and that they were the most serious of the four representations. It submits the appropriate penalty for these is $1.25 million. It submits that there is limited evidence as to the prevalence of the Quantity Representations and the Court should not assume that there is a relevant nexus between the total number of completed transactions in the 57 day period and the Quantity Representations. It submits that the appropriate penalty for this course of conduct is $1 million. Viagogo submits that the Official Site Representations were the least serious of the representations having regard to there being an “element of ambiguity” about them (citing the liability judgment at [129]) and the evidence that only a very small proportion of clicks on the viagogo ad resulted in a completed transaction. It submits that the appropriate penalty for this course of conduct is $750,000. The result, viagogo submits, is a total penalty of $3 million which is proportionate having regard to the total profit that it earned during the relevant period and the range of penalties awarded in other cases.
I first consider the factors raised by the parties before turning to assess the appropriate penalty.
5.3 Consideration
5.3.1Nature, duration and extent of the contravening conduct: s 224(2)(a)
5.3.1.1The Official Site Representation
In section 3 of the liability judgment various aspects of the viagogo ad, which contained the Official Site Representation, and the dynamic operation of the viagogo Australian website are described. A substantial method by which consumers encountered the viagogo Australian website during the relevant period, as described in section 4 of the liability judgment, was to put into a Google search the name of an event or performance. In the results produced on the Google results page would be the sponsored viagogo ad. In other instances, a Google search that included the event name and the word “viagogo” would similarly produce results with the sponsored viagogo ad. In each individual instance there was a contravention. The contraventions took place for the entirety of the relevant period.
As I have noted, the confidential evidence of viagogo indicates that there were over XXXX XXXX clicks on the viagogo ad and a proportion of those clicks resulted in completed transactions for the sale of tickets. I infer that notwithstanding that some consumers may have deliberately performed a Google search in order to find the viagogo Australian website, in the overwhelming number of cases each click on the viagogo ad, irrespective of whether that click resulted in a completed transaction, was performed by a consumer who read the viagogo ad and was accordingly the subject of contravening conduct in breach of s 29(1)(h) and s 34 of the ACL. While the number of clicks on the viagogo ad and the number of transactions completed as a result of such clicks provides useful guidance in assessing the harm suffered by consumers, I note that those figures do not necessarily represent the universe of consumers who were exposed to the Official Site Representation. More consumers may have seen the viagogo ad and, although they did not click on the link, have been misled.
Although the Official Site Representation contravened two penalty provisions (ss 29(1)(h) and 34 of the ACL), viagogo cannot be punished twice for the same contravention. The ACCC submits that the question of penalty should be determined by reference to the breach of s 34 of the ACL alone. I agree. It captures the gravity of viagogo’s misconduct because the representation was positively liable to mislead the public: see liability judgment at [192].
The Official Site Representation misrepresented that the consumer could purchase official, not resold, tickets through the viagogo Australian website. I characterise this as qualitatively a very serious misrepresentation, because it fundamentally misled consumers as to the nature of viagogo’s business in order to attract consumers to acquire tickets. Viagogo was far from an authorised vendor of tickets. By making the Official Site Representation it drew consumers to the viagogo Australian website by engendering the erroneous belief that the tickets made available for sale were authorised by the venue or host to be sold by viagogo when in fact viagogo was providing a platform for third parties to sell tickets second hand: liability judgment at [142]. The consequence of being so drawn-in led to the consumer being exposed to further misleading conduct on the part of viagogo on its website. Contrary to the suggestion made by viagogo in its submissions, my observation at [129] of the liability judgment that there was perhaps an element of ambiguity about the advertisement does not provide an ameliorating factor. As I noted, the room for ambiguity was slight, and my finding was that the ordinary consumer would be misled.
During the relevant period a very substantial number of individual clicks (XXXXX XXXX) were made on the viagogo ad and a proportion (XXXX) of transactions were completed on the website as a result of clicks on the viagogo ad during the relevant period. Viagogo points out that it ceased using the word “official” in its Google advertisements in December 2017, after the relevant period, but completed transactions rose in number in December 2017. It submits that this supports an inference that the word “official” in the Official Site Representation was not material to consumers who entered into a transaction. In my view it is not appropriate to draw such an inference. There is simply not enough information available to make such a comparison in any meaningful way. The rise in transactions could be seasonal, the result of other changes to the website, because more attractive events were promoted, or due to any other number of reasons.
In my view one must be careful with what may be drawn from statistics like these. Little in the way of complex information can be gleaned on the basis of the numbers alone and in the absence of expert evidence interpreting them.
I accept that the number of clicks on the viagogo ad indicates that there was a very large number of incidents where consumers were exposed to the Official Site Representation. Each click is likely to signify that a consumer read the advertisement and was exposed to the Official Site Representation. It is likely that this was the first point at which a consumer would encounter viagogo. Even making a discount (which I do) for the likelihood that some consumers who were familiar with viagogo’s services as a ticket re-seller, or who were repeat visitors to the viagogo Australian website, did so by clicking on the viagogo ad link, the number of people who encountered the misrepresentation is very substantial.
Viagogo submits that allowance should be made for the fact that, because tickets sold by it were second hand or re-sold, some consumers are likely to have obtained tickets they would not otherwise have been able to get. To the extent that a proportion of those consumers were aware that the tickets were being resold, that is a relevant consideration and I allow for it.
I also accept that the figures reveal that a very low percentage of consumers who initially clicked on the viagogo ad ultimately concluded with an acquisition of tickets on that occasion. However, the number of people who entered a transaction is still very large, which is a factor relevant to the assessment of penalty.
5.3.1.2The Quantity Representations
In [150] of the liability judgment I reviewed the Quantity Representations. These were misrepresentations in contravention of s 34 of the ACL because whilst they led consumers to believe that limited tickets were remaining in the venue, the true position was that the Quantity Representations were references to the tickets available on the viagogo Australian website only. The misrepresentations were made on numerous occasions during a consumer’s journey from the commencement of the booking process to the point of purchase of tickets. Furthermore, as I describe in section 3.3 of the liability judgment, the Quantity Representations were made in a variety of forms with the effect that consumers were induced to believe that because of the limited availability of tickets at the venue, unless they completed a purchase, they would lose the opportunity to acquire tickets at all. The effect of the manner in which the misrepresentations were made was to distract consumers from the inadequate disclaimers present on the viagogo Australian website. They were productive of anxiety on the part of consumers: see liability judgment at [75], [150] and [152]. They continued for the relevant period. The confidential evidence indicates that many (XXXXX XXXXX XXXX) people clicked through the viagogo Australian website and a lesser number (XXXXX XXXX) of people acquired tickets during the relevant period. I regard this too as qualitatively a very serious misrepresentation.
Viagogo submits that apart from the evidence of the five ACCC lay witnesses, who gave evidence about seeing some of the impugned statements, the nature and extent of these misrepresentations is unknown and that it is also unknown as to how often they appeared and whether they had an impact upon consumers. However, whilst the precise numbers are unknown, for the purposes of assessing penalty it is sufficient to make the following observations as to the extent and duration of the Quality Representations.
The ACCC submits that an order for a compliance program ought to be made in the following terms:
Pursuant to s 246(2) of the ACL, viagogo is:
(a) within 90 days of this order, to establish and implement an ACL compliance program to be undertaken by each employee of viagogo or other person involved in viagogo’s business who deals or who may deal with consumers, being a program designed to minimise viagogo’s risk of future contraventions of ss 18, 29, 34 and 48 of the ACL in relation to the sale of tickets on the viagogo Australian website; and
(b) for a period of 3 years from the date of this order, maintain and continue to implement the ACL compliance program referred to in (a) above.
Viagogo does not oppose the making of this order. I consider it to be appropriate.
9. DISPOSITION
For the reasons set out above, I grant the following relief:
(1)Declarations in the form set out at paragraphs [7], [10], [12] and [14] above;
(2)An injunction in the form set out in [130] above;
(3)Pecuniary penalties in the amount of AUD$7,000,000.00;
(4)A compliance program order in the form set out at paragraph [147] above; and
(5)Viagogo pay the ACCC’s costs of these proceedings as agreed or as assessed.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate:
Dated: 2 October 2020
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