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22 ESLJ 1 (2024)

handle is hein.journals/entersport22 and id is 1 raw text is: ENTERTAINMENT AND James, M and Osborn, G. 2024. A New Dawn for Ticket SPORTS LAW OURNL. Regulation? Entertainment and Sports Law Journal, 22(1): 1, pp.1-5. DOI: https://doi.org/10.16997/eslj.1582 INTERVENTIONS A New Dawn for Ticket Regulation? Mark James' and Guy Osborn2 1 Manchester Metropolitan University, UK 2 University of Westminster, UK Corresponding author: Mark James (mark.james@mmu.ac.uk) Ticket touting remains one of the most controversial issues facing the sport and entertainment indus- tries, with diametrically opposed views from both sides on its legality and the need for further regulation. Following the launch of the latest campaign to increase consumers' knowledge of available protections when engaging with the secondary ticketing market, this intervention reviews the current state of the law and proposes a more holistic approach to any future legislative interventions. Keywords: Tickets; Touting; Scalping; Regulation; Secondary Market Introduction The unauthorised resale of tickets for entertainment events, otherwise known as ticket touting, or in the US as scalping, has been a well-documented part of the UK's ticketing landscape for well over a century. Despite regular interventions by the UK Parliament to attempt to prohibit ticket touting at football, the Olympics, and the Commonwealth Games, and the regulation of specific aspects of reselling, such as the prohibition on using bots to buy tickets (The Breaching of Limits on Ticket Sales Regulations 2018), the secondary ticketing market shows no signs of declining (James and Osborn 2023; House of Commons Culture, Media and Sport Committee 2008; Waterson 2016). Further, when any major ticket- related convictions have been secured, it has been for the offences of fraudulent trading and going equipped (R v Hunter and Smith 2021), not the touting-specific offences. This shows prosecutorial creativity, but not using the laws that are supposed to regulate touting perhaps casts doubt on the efficacy of the current regime. Underpinning all of this is a well-worn debate about the very nature of the activity: are ticket touts serving a legitimate purpose in the mar- ketplace, or are they causing the shortage in available tickets by buying them up to resell them? Should we leave things as they are or regulate the market more specifically? This intervention does not address this existential question directly but, rather, examines recent developments in the ticketing ecosystem and places them within their broader context. On 11 September 2023, the FanFair Alliance (FFA) outlined three pro-consumer measures for tackling ticket touting (Davies, 2023, FFA 2023). These proposals recognise the complexity of the issues in play and the need for holistic think- ing to address the problems associated with the operation of the secondary ticket market, something we proposed as far back as 2017 (James and Osborn 2017). Two of FFA's proposals concern industry action and response: first, the need for platforms such as Google to take remedial action against unauthorised listings (IQ 2022). This proposal has two limbs. The first asks search engines to take action to stop promoting touts. Secondary and resale platforms regularly appear at the top of searches, notwithstanding the fact that tickets may still be available at face value on primary and other authorised sites. This could be seen as a negative or reactionary measure. The second limb was more proactive, asking the search engines and resale platforms to actively direct consumers to authorised sources. The second FFA proposal focussed on the ticketing industry itself: to make capped, consumer-friendly ticket resale visible and viable. However, it is the third of the FFA's proposals, the call for legislation to criminalise the unauthorised and for-profit resale of event tickets that will be our focus here. Such a call is not a new one, but including it as an integral element of a broader series of proposals to tackle ticket touting illustrates both the ongo- ing importance of the issue, and the increasing acknowledgement of the need for agile and nuanced approaches to dealing with it. This intervention examines the call for legislative action by locating it within the context of previous attempts to regulate ticket touting both in the UK and abroad. Further, it examines the legislative possibilities open to an incoming Government, potentially within a broader raft of measures supporting the cultural industries. There is increasing momentum behind the support of both industry-led and legislative action on this issue, as can be seen in the recent manifestos of UK Music (UK Music 2023), which we discussed in our article for The Quietus, 'Shadowplay: the case for regulating online ticket touting'. Building on these points, this intervention exam- ines specifically the granular detail of the Private Members Bill introduced by Sharon Hodgson MP in 2010 before

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