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Ticket ‘touting’

Ticket ‘touting’ provides a small case study in how the normal expectations of market competition are subverted by intrusive state regulation. Section 31 of the 2006 Act is entitled ‘Sale of tickets’. It creates an offence committed where a person sells an Olympic ticket in a public place or in the course of a business otherwise than in accordance with a written authorization issued by the London Organising Committee. The rest of the section spells out the ingredients of the offence: it is broadly drafted, covering, for example, offering to sell and advertising that a ticket is available for purchase, and moreover a person is to be treated as acting in the course of a business if he or she ‘does anything as a result of which he makes a profit or aims to make a profit’. There were reportedly some 200 arrests during the Games for offences committed pursuant to this section of the Act.n6

The statute does not use the legally imprecise word ‘touting’ but that is the conventional name for the practice at which this section is targeted. The pejorative term ‘touting’ hides a more mundane reality: the seller of tickets that have been purchased through so-called ‘unauthorized’ channels is doing no more than breaking open the contractual arrangements restricting re-sale imposed by the first seller and providing a product or service that is in demand. There is a market only because the first seller’s price has turned out to have been too low. If this is ‘touting’, then any market involving re-sale deserves the same intellectually silly slur. The transaction is no more than a conventional matching of demand to supply. What is really at stake in the use of the term ‘touting’ is an attempt to provide a cover to explain public regulation designed merely to defend a contractual position which the first seller—the organizer of the sports event—is unable through private law or through commercial strategy to defend as securely as it would wish. Justifications for legal regulation rooted in protection of public order may carry some limited purchase in the case of a particularly combustible football match, but they cannot provide a sensible justification for using legislation and public resources to suppress the resale of tickets for an afternoon session spent watching Olympic table tennis or an evening at the velodrome. Yet that is the meaning of the 2006 Act. It represents a surreptitious slippage of measures designed to address public disorder into wider areas of purely commercial concern.[1] [2] There is no explanation for this pattern of public regulation of the market for tickets beyond the sheer economic power of sports bodies intent on extracting legislative protection of their commercial interests from compliant host countries. Sports governing bodies have borrowed the coercive powers of the state.

  • [1] cf M James and G Osborn, ‘The Olympics, Transnational Law and Legal Transplants: theInternational Olympic Committee, Ambush Marketing and Ticket Touting’ (2016) 36 Legal Studies 93, 106-109.
  • [2] See eg J Hoek and P Gendall, ‘Ambush Marketing: More Than Just a Commercial Irritant?’(2002) 1 Entertainment Law 72; C Watson and C Graham, ‘European Regulation of Media Rights’and T Jagodic, ‘Legal Aspects of International Event Sponsorship’ both in J Nafziger and S Ross (eds),Handbook on International Sports Law (Edward Elgar 2011) chs 14 and 18, respectively; JT Marcus,‘Ambush Marketing: An Analysis of its Threat to Sports Rights Holders and the Efficacy of Past, Presentand Proposed Anti-Infringement Programmes’ (2011) 11(3—4) Intl Sports LJ 97; M James and G Osborn,‘London 2012 and the Impact of the UK’s Olympic and Paralympic Legislation: Protecting Commerceor Preserving Culture?’ (2011) 74 MLR 410, 422—26; S Stuart and T Scassa, ‘Legal Guarantees forOlympic Legacy’ (2011) 9(1) ESLJ 3 accessed 29 November 2016; G Pearson, ‘Dirty Trix at Euro 2008: Brand Protection, AmbushMarketing and Intellectual Property Theft at the European Football Championships’ (2012) 10(1)ESLJ 2 accessed 29 November2016; James and Osborn (n 118) 102—106.
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