Viagogo AG v Competition and Markets Authority

A consent enforcement order is construed using contractual interpretation principles, read in its statutory and regulatory context. Where the order expressly permits information to be indicated through an icon, the fact that a consumer must hover over or click the icon does not prevent compliance with a requirement of prominent display. That applied to face-value information. Where no such express exception exists, information accessed only through hover-over text is not prominently displayed if the user must take action to access it. The court must apply clear language and cannot rewrite the order to correct an alleged omission or to achieve parity with terms agreed with another trader.

Viagogo sought declarations concerning the meaning and effect of a consent enforcement order made under section 217 of the Enterprise Act 2002 following proceedings brought by the Competition and Markets Authority concerning consumer information and guarantee terms on Viagogo’s secondary ticketing platform.

The dispute concerned two requirements. The first required the face value of tickets to be clearly and prominently displayed, either in writing or through a suitable label or icon. The second required guarantee claim deadlines to be clearly and prominently disclosed. Viagogo used hover-over text for both categories of information. The central issue was whether that method complied with the order.

1. The consent order was to be construed in accordance with the principles applicable to contracts. The court considered the natural and ordinary meaning of the language, the order as a whole, its commercial and statutory context, the parties’ assumed knowledge at the date of agreement, and commercial common sense. Clear language had to be applied. The public significance of a court order reinforced the importance of its wording.

2. The parties had expressly contemplated hover-over text and expressly permitted information to be supplied through a link or pop-up in specified provisions. Those provisions showed that an exception to the general requirement in Section C, clause 27(c), that information not require user action had to be expressed.

3. Viagogo complied with Section B1, clause 2(e) by displaying face-value information through an “FV” icon, accompanied by an explanatory key. The express reference to information being indicated through a suitable icon necessarily permitted the user to take the action required to access the information. The icon and surrounding presentation satisfied the requirements of clarity and prominence and were not misleading.

4. The position was different for guarantee claim deadlines under Section A, clause 20(c). That provision contained no express exception to clause 27(c). Since accessing hover-over text required the consumer to take action, the method did not provide prominent disclosure. The possibility that the information would later be supplied in a durable medium did not cure the defect, because the information could affect the purchase decision and had to be available before purchase.

5. The court declined to take account of more favourable arrangements agreed between the CMA and a competitor. It also declined to depart from the clear language on the basis that the order went further than section 90 of the Consumer Rights Act 2015 required. The court could not rewrite the order after the event.

6. A declaration was granted in relation to the face-value information. The corresponding declaration concerning guarantee claim deadlines was refused.

First-instance Part 8 claim determined by the High Court. No prior appellate decision is stated in the judgment.