On 27 August 2024, music fans around the world heard the unexpected – the band is getting back together! Following the excitement of Oasis' announcement of its upcoming UK and Ireland tour in 2025, the headlines have been marred by widespread discontentment regarding the ticket sale process. Ticket prices were advertised a few days prior to their official sale on 31 August 2024 when many hopeful fans queued for hours online in the hope of snagging a ticket. However, after eventually making their way to the front of the queue, many found themselves being offered a ticket far in excess of the original price advertised due to dynamic pricing systems which raise the cost of ticket prices in response to high demand and limited supply.
Following a stream of complaints, the new Labour Government reaffirmed a pledge from its manifesto to carry out a consultation into the ticketing market in the UK, primarily aimed at cracking down on unfair pricing and ticket touts. However, Lisa Nandy, Secretary of State for Culture, Media and Sport, further commented that the consultation will now include issues around transparency and the use of dynamic pricing, including the technology around queuing systems which incentivise it.
Against this backdrop, can we expect to see any action from the UK's Competition and Markets Authority ('CMA') on this, and what tools does it have at its disposal to tackle the issue?
Consumer law
While consumer law as a tool cannot tackle dynamic pricing itself, it is well suited to tackling problems arising from the consumer experience – for example, the lack of transparency surrounding the use of dynamic pricing and how that would impact the price payable which has led to much of the uproar in the case of the Oasis ticketing saga. Using its consumer law powers, whether under the existing regime or under the Digital Markets, Competition and Consumer Act (DMCCA) (currently expected to come into force spring 2025), is therefore the most likely route forward should the CMA be minded to take action.
The DMCCA prohibits misleading actions, misleading omissions and specifically, omissions of material information from invitations to purchase. This latter provision can be relied on where consumers have not been provided with information regarding the specific price they will have to pay in a clear or timely manner. This is arguably the case for the use of dynamic pricing for high demand events where a) its use and potential impact of its use on the price payable is not clearly displayed at the outset of the process and b) where the final price is only displayed to the consumer after a lengthy queuing process, where they are already invested in the purchase and are given only a short window to complete the purchase. Existing consumer law, in the form of the Consumer Protection from Unfair Trading Regulations 2008, includes similar provisions which could equally be relied on ahead of the DMCCA coming into force. Should the CMA decide these provisions fall short for the kinds of behaviours that are causing concern, the Government does have the power to introduce new "automatically unfair practices" to the DMCCA by way of secondary legislation – though specifying precisely what should be automatically unfair may not be straightforward when there are established uses of dynamic pricing in markets such as airline ticket sales.
The precise powers available to the CMA will depend on whether it acts pre or post the DMCCA coming into force. Either way, while a full investigation and enforcement action would take some time, the CMA could choose to publish an open warning letter in a shorter timeframe setting out its expectations for future events utilising dynamic pricing as a swift way of improving consumer experience in future (with the threat of fines hanging over those who choose to ignore such informal guidance).
Competition law
Another potential avenue for the CMA to investigate the use of dynamic pricing in ticket sales is through competition law. In an increasingly digital era, companies are using pricing algorithms to help respond to fluctuating demand and determine optimal prices on a real-time basis e.g. for airline tickets and hotel room bookings. The CMA has previously looked at the principle of dynamic pricing in the context of pricing algorithms, producing a report in 2018 and a follow up paper in 2021 which addressed them, and concluded that the practice did not pose any serious competition law concerns but rather allowed businesses to more accurately reflect demand and availability of supply.
Indeed, the CMA considered that when used appropriately, these algorithms can lead to greater competition and allow businesses to stay responsive to consumer behaviour. The main concerns flagged in the CMA's reports related to instances where pricing algorithms are used to engage in anti-competitive practices, e.g. price-fixing, behavioural co-ordination with competitors, or indirect exchange of competitively sensitive information. With this background in mind, it seems unlikely that the CMA would reach for its competition powers in this case – particularly given that the most obvious competition law angles are either excessive or discriminatory pricing – cases that are not straightforward to bring as they require considerable market evidence and economic analysis.
Market study
A final option available to the CMA would be take a holistic view and to tackle the variety of alleged unfair practices in the ticketing market (primary and secondary) through a single market study which, if appropriate could progress to a market investigation. This may well be an appealing option to the CMA given its previous interest in the sector (merger investigations into ticketing platforms and consumer enforcement action in the secondary ticketing space) and the current focus on the sector from both a secondary (concerns about inflated prices and non-existent tickets) and primary ticketing (dynamic pricing) perspective. Whether the CMA chooses to take this route will likely depend on the ultimate scope of the Government's consultation (and whether it is asked by the Government as part of its consultation to open such a market study) and whether it considers its existing consumer law powers sufficient to tackle both sides of the market.
