The High Court has ruled in the case of Viagogo AG v Competition and Markets Authority [2019] EWHC 1706 (Ch). Viagogo sought declarations concerning the true meaning and effect of two substantive provisions in a consent Enforcement Order made under section 217 of the Enterprise Act 2002.
Approach to interpreting consent orders
The judge reviewed the case law and said that a consent order is to be construed in accordance with the same principles that apply to the construction of contracts (Weston v Dayman [2006] EWCA Civ 1165 [2008] 1 BCLC 250). The judge added that where a consent order made in a statutory or regulatory context is being considered, it necessarily means that the relevant context includes the statutory or regulatory purposes to which effect is being given by the order being construed.
The case and the parties’ arguments
The case arose out of the investigations carried out by the Competition and Markets Authority into viagogo’s website and alleged breaches of consumer protection law. The Order required that certain information be provided to customers using the website.
In purported compliance with the Order, viagogo provided information about the face value of the tickets being offered for sale and on the time limits that applied to claims under its guarantee. It used a “hover over” text facility. However, the information was visible only if and as long as the cursor was positioned over the relevant icon and the information could not be printed.
The CMA argued that viagogo had failed to comply with its obligations under the Order in two respects: it said that a pop-up/hover over box was not compliant with the Order; and it alleged that viagogo did not display the face value of the ticket “clearly and prominently”.
Viagogo made two general points. First, hover over text facilities have been recognised in other equally sensitive areas concerning information disclosure as an effective and appropriate means of providing information. Secondly, if the CMA were correct, it would place viagogo in a position that is disadvantageous when compared to its competitor Stubhub who had agreed different arrangements with the CMA.
The judgment
The judge said that the parties had in contemplation at the time they were agreeing the terms of the Order that information might be provided by hover-over text and, where this was considered appropriate, it was expressly provided for. The Order provided that the face value of a ticket could be indicated through a suitable label or icon. The CMA argued that the icon did not in itself display the face value but the judge disagreed. There was no distinction of substance between providing the information in writing and providing it as or by a pictorial image.
The judge did not accept the CMA’s contention that the overall get up was misleading. The icon was plainly an icon. The key at the top of the page showed that it is concerned with the face value of what is being offered for sale. The asking price was well separated from the icon. The judge said that consumers shopping for tickets in the secondary market would be aware that the prices being demanded will be in excess of the face value of the tickets being offered or are likely to be.
The judge regarded the fact that the CMA arrived at a different arrangement with viagogo’s competitor was immaterial too. The important thing was what was agreed by the parties to the Order, not what one of them agreed with a third party. Viagogo chose not to compromise with the CMA at the stage when the various other market participants chose to do so. The Order reflected the terms that the parties to it were prepared to agree at the time it was agreed between them. There was no proper basis for departing from what was agreed simply because at an earlier stage viagogo’s trade rival was able to secure better terms by negotiation with their common regulator.
Where the parties had intended that information be provided through an icon they had provided so expressly. As accessing hover-over text requires action by the website user, it was not permitted except as otherwise expressly permitted by the Order. There was such a provision in respect of the provision of face value information but there was not in relation to guarantee claim deadline information.
In summary, the judge said that he was prepared to grant a declaration that viagogo complied with its obligations in relation to the face value, but not in relation to the provision of deadline information.
The judge also concluded that whether the provision of information by hover over text constituted compliance depended on the terms of each obligation under which information was to be supplied.
