An Italian court has upheld a €3.7m fine imposed on Viagogo for hosting tickets sold in contravention of Italian law. 

The judgment, which was handed down by the Regional Administrative Court of Lazio, rejected an appeal from Viagogo over a 2020 ruling brought by Italian communications regulatory authority AGCOM sanctioning the resale operator for listing tickets to 37 events at above face value between March and July 2019.

In the ruling earlier this month, the judges rejected Viagogo’s argument that it was acting as a “passive hosting provider” by merely connecting resellers with potential buyers, which would exempt the resale platform from liability under Italian law implementing the E-Commerce Directive. Instead, Viagogo was found to provide a range of services and promote and advertise tickets in a way that could not be considered to be carried out without any awareness or control on its part.

The Court pointed out that “The service provided by the Viagogo… clearly does not have the characteristics of passive hosting, given that it clearly does not consist in the mere “storage of information”, but rather in the articulated activities of optimisation and advertising promotion of the titles on sale…. Nor has the appellant in any way substantiated the claim that such complex activities would be carried out by the platform in a completely automatic manner and without any awareness and/or possibility of control on its part.”

In a final dig, the court added that even if Viagogo had qualified as a “passive hosting provider,” it would still not have benefited from the liability exemption afforded by the law as it did not act quickly to remove or disable access to the listings once notified by the competent authorities.

Italy’s 2017 Budget law states that tickets for entertainment events must only be sold by authorised ticket providers in Italy. However, consumers are permitted to sell unwanted tickets for a price equal to or less than the ticket’s face value.

FEAT (Face-value European Alliance for Ticketing) said: “This important ruling is another step towards greater accountability of secondary ticketing platforms, which routinely profit from illegal ticket sales.”

The decision follows other rulings against liability exemption as a passive hosting provider – from both the Italian Supreme Court (n. 7708 March 19, 2019. Mediaset vs Yahoo!) and European Court (C-324/09, L’Orèal v. eBay and C-236/08, Google v. Louis Vuitton).

It comes as European legislators look at tightening the rules around platform liability, with particular regard to marketplaces — including the likes of Viagogo.

FEAT director Sam Shemtob said: “Uncapped secondary marketplaces such as Viagogo have long been shielding under the liability exemption offered by EU law by claiming to have little to no knowledge of the activity taking place on their sites.

“It is time that they’re held responsible for the illegal activity they promote and profit from, both in Italy and across Europe.”

Viagogo was approached for comment but had not responded at the time of publication.

Viagogo, Stubhub and Mywayticket were penalised a total of €5.58m in June 2020 in relation to a series of concerts that took place between March and September 2019.

At the time, AGCOM said: “It was demonstrated that these, through their online platforms, did not just connect potential sellers and buyers for the sole purpose of facilitating economic transactions, like a simple neutral virtual bulletin board for the sale of individual tickets, but had the objective of promotion of events, with the aim of maximising the number and price of tickets sold, thus placing itself also in competition with primary market vendors and event organisers.”