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ID&T drops lawsuit against Dutch government

ID&T says it sees no legal grounds to advance with the preliminary injunction proceedings against the Dutch government for its restrictions on live music events.

Earlier this week, the government announced that only small, one-day festivals will be permitted to take place in the Netherlands this summer due to the number of Covid-19 infections and hospital admissions.

In response, the lawyer representing ID&T and more than 40 co-claimants from the live industry contacted the state lawyer to request the Outbreak Management Team’s (OMT) advice and the substantiation of the decision.

After deliberation between all parties, ID&T says it has become clear that the current summary proceedings cannot be continued.

Rosanne Janmaat, COO of the ID&T group says: “We are extremely disappointed in the outcome of the decision. In our opinion, Fieldlab Events has shown that it is possible to organise events in a safe and responsible way, but the cabinet has decided otherwise. Despite this, our lawyers have indicated that, in view of the OMT advice on which the cabinet’s decisions are substantiated this time, there is little chance of overturning the decision by means of summary proceedings.”

“We assume that the cabinet will soon take a structural decision and that we will be able to fully open again in September”

On 13 August, the current decision on live music events will be reconsidered by the cabinet.

“We assume that the cabinet will soon take a fundamental and structural decision and that we will be able to fully open again in September,” continues Janmaat.

“After all, it has always been communicated that when everyone who wants to has been able to vaccinate, that is the way out. If the government lets us dangle again and does not offer a sustainable future perspective, we will prepare possible legal steps and perhaps even call on our entire supporters of fans, suppliers, artists, etc. to mobilise and make themselves heard.”

The Dutch promoter – known for events such as Mysteryland, Sensation, Milkshake and Decibel Outdoor – announced the summary proceedings in early July after the government reimposed Covid restrictions weeks after they were lifted.

ID&T was then joined by more than 40 event organisations including Event Warehouse/Paaspop, DGTL and F1 Dutch Grand Prix Zandvoort.

 


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SA supreme court rejects appeal over concert death

The Supreme Court of Appeal (SCA) of South Africa has rejected an appeal by one of the companies held responsible for a scaffolding tower collapse that killed one person at a Linkin Park show in South Africa in 2012.

In 2017, nearly five years after the death of 32-year-old Florentina Popa, Cape Town magistrate Ingrid Arntsen ruled that Vertex Scaffolding, Bothma Signs and Hirt & Carter – which constructed two large scaffolding towers at Cape Town Stadium and hung an advertisement for Lucozade between them – had been negligent and could be “causally linked” to Popa’s death, while Big Concerts, the promoter of the show, was found not to be responsible.

Popa died of blunt-force trauma after the tower fell on her in strong winds before Linkin Park show’s at the 58,309-seat stadium on 7 November 2012.

Arntsen said the companies should have foreseen that even moderate winds could have blown it over. “[W]inds with speeds of up to 15 metres per second were eminently foreseeable in Cape Town, and the towers could have been designed and constructed in such a way as to withstand the winds that were recorded on the day of the concert,” she said at the time.

“There is, in my view, no discernible material error of law … on which a review might be founded”

“It would appear, then, from all the evidence, that while the wind did come up and create problems, there was no real fear on the part of anyone in authority at the concert that the towers would blow over.”

Durban-based Hirt & Carter, which produces billboards and digital advertising, took the inquest’s findings to the Western Cape High Court, which dismissed the appeal, and then to the Supreme Court of appeal, which has upheld the high court’s ruling.

SCA judge Sulet Potterill, with four judges concurring, found that Arntsen “cannot be faulted for concluding that the death of the deceased was brought about by an act or omission that prima facie amounts to or involves an offence on the part of Hirt & Carter”, reports News24.

“It was premised on a finding of negligence on the part of Hirt & Carter. There is, in my view, no discernible material error of law by the magistrate of the kind on which a review might be founded. Indeed, I can find no error at all.”

Hirt & Carter’s appeal argued that the magistrate had erred when she found that it had omitted to supervise and manage the erection of the towers, which it said was the responsibility of a subcontractor (Bothma Signs).

In her judgment, Potterill disagreed, saying Arntsen “was correctly unpersuaded that the subcontracting of Bothma Signs and Vertex, against the facts of the case, could be relied on to exonerate Hirt & Carter.”

A further 19 people were injured in the accident, with 12 requiring hospitalisation.

 


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French festival sues over ‘gutter punk’ comments

A French electronic music festival is suing two local politicians for defamation over derogatory remarks the pair allegedly posted on social media.

Les Dentelles Électroniques – which takes place on Sunday 7 August, with German techno DJ Thomas Schumacher headlining – is taking legal action against Corentin Triplet and Jocelyne Cieslak, both municipal councillors in Brebières in northern France, who are accused of writing libellous posts about the festival on Twitter and Facebook, respectively.

According to Les Dentelles Électroniques, Triplet posted on Twitter on 17 July to say he was “surprised” to see Brebières “associated with an event for punks à chiens”, the French term for gutter punks (literally “dog punks”), a subsection of the punk world characterised by homelessness, vagrancy and, sometimes, voluntary unemployment and antisocial behaviour.

“By this tweet, Mr Triplet clearly despises the organisers of Les Dentelles Électroniques, as well as its festivalgoers and all the members of the electronic music ecosystem, associating them with ‘gutter punks’,” reads a statement from the festival. “However, the festival is very far from the image to which Mr Triplet refers. Indeed, everyone involved with this event maintains very good relations with the security forces [and] municipal police […] in order to guarantee the best possible conditions for its operation.”

“Fhe festival is very far from the image to which Mr Triplet refers”

Cieslak, meanwhile, is accused of making, on 21 July, a public post on her Facebook account where she appears to “question the the charitable nature” of the 1,500-person festival, “undermining the honour” of the festival’s organiser, the foundation CGDPC (Chti G Découverte Passion et Culturelle).

“The festival organisers find it unfortunate to want to harm such an event in the current health context [the pandemic] and the resulting difficulties,” reads a statement from CGDPC.

“In light of the above, the festival organisers decided to file a complaint on Thursday 22 July 2021 against the two authors of these publications” under the Press Freedom Act of 29 July 1881, it adds.

The festival is supported in its lawsuit by electronic industry association Technopol, which says it stands with the “organisers and festivalgoers implicated by these illicit comments and assures them of its full confidence”.

 


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Sponsor refuses to pay ‘super-spreader’ festival

Cider company Magners is facing legal action for allegedly refusing to pay more than £1.7 million in owed sponsorship money after a partner festival became a Covid-19 ‘super-spreader’ event.

Magners, owned by Dublin-based C&C Group, claims that the decision by Cheltenham Festival to push ahead in 2020 caused the four-day festival serious reputational damage and as such should have been cancelled.

The popular horse-racing event took place with over 250,000 visitors from 10 to 13 March 2020, ten days before the first UK lockdown on 23 March. It also featured a new live music-focused enclosure, The Park, featuring DJ sets from Nick Grimshaw, Laura Whitmore, Roman Kemp and more.

According to the Telegraph, Cheltenham Festival 2020 was “widely seen as a Covid superspreader event”, though organisers and the Department of Health and Social Care confirm the event was operating within the public health guidance at the time. (Just over a week earlier, on 1 March, the UK’s deputy chief medical officer had told event organisers there was no need to stop major events to halt the spread of the coronavirus.)

C&C claims the decision to push ahead in 2020 caused the festival serious reputational damage

Magners had agreed to sponsor the festival, as well as other meetings at Cheltenham Racecourse, from 2018 to 2022 in a deal worth just over £1.7 million. However, in documents filed with the High Court in London, C&C claims that the 2020 Cheltenham Festival should have been cancelled, and revealed that it also did not want the Magners name associated with the 2021 event, which was held behind closed doors.

The Jockey Club, owner of the racecourse, is now suing C&C for damages of £1,733,761.51, arguing that it has violated the terms of the sponsorship agreement, which remains in force.

A racing industry source tells the Telegraph it is confident the Jockey Club will win the ensuing legal battle, saying: “Magners appear to be trying to throw mud at the Cheltenham Festival because they know their own defence is weak. The Jockey Club appear to be confident of their case, that the sponsorship contract agreed with [Magners] stands, is valid and must be honoured.”

C&C declined to comment on the ongoing legal proceedings.

 


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Metallica sue Lloyd’s over postponed tour losses

Metallica have filed a lawsuit against Lloyd’s of London, claiming that the organisation relied on an ‘unreasonably restrictive interpretation’ of an insurance policy purchased to cover its 2020 South American tour.

The band were due to play six dates across the continent in April 2020 and say that they had acquired a standard cancellation, abandonment and non-appearance insurance policy to cover their losses if any of the tour was postponed or cancelled.

The Covid-19 pandemic initially saw those dates postponed until December 2020, before being postponed again. As yet, no rescheduled dates have been announced.

The suit says Lloyd’s denied the claim for losses based on a communicable disease exclusion, which Metallica dispute

Crucially, the lawsuit, filed last week in the Los Angeles Superior Court, says that Lloyd’s denied the claim for losses based on a communicable disease exclusion, which Metallica dispute, reports CBS Los Angeles.

As with previous lawsuits targeting Lloyd’s, such as those brought by Foo Fighters and Kanye West, it is likely the Metallica suit is targeting a specific Lloyd’s insurer or syndicate rather than the market itself.

Lloyd’s has not commented on the lawsuit, except to point out that it is not an insurance company, but rather oversees and regulates a market of independent insurers.

 


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Booking fees in the dock in Germany

Verbraucherzentrale NRW, the Consumer Advice Centre of North Rhine-Westphalia (NRW) in Germany, has brought legal action against CTS Eventim over the ticket agency’s non-refunding of booking fees on events cancelled due to the coronavirus pandemic.

The Verbraucherzentrale sued Eventim in Munich after claiming to have received “massive [amounts of] complaints” from consumers in the state who received ticket money back less the booking fee. The cancelled shows were organised by a various promoters which had “commissioned Eventim to reimburse the ticket costs for cancelled events”, according to Verbraucherzentrale NRW, the North Rhine-Westphalian branch of Germany’s network of 51 consumer organisations.

The case reached the First District Court of Munich (Landgericht München I) on Wednesday 9 June, with both the Consumer Advice Centre and CTS Eventim claiming victory – the former because it secured a change to Eventim’s terms and conditions on ticket refunds, and the latter because the judgment confirmed that the promoter is responsible for overseeing ticket refunds, while it had dispensed with the T&Cs in question in October last year.

Wolfgang Schuldzinski, CEO of Verbraucherzentrale NRW, says the Consumer Advice Centre’s position is that, “in a large number of cases, Eventim wrongly withheld sums of money instead of repaying the entire ticket cost to consumers”.

The ruling confirmed that the ticket seller is “neither obliged to reimburse the ticket price nor the advance booking fee”

Following the court judgment, “if Eventim was commissioned to repay the ticket cost in the event of cancellations, those affected can now request Eventim to pay the outstanding amounts [the fees],” adds Schuldzinski. “This is a great success.”

CTS Eventim, meanwhile, welcomes the court judgement as a “clarification” that for postponed or cancelled events, “the organiser alone is always the contact point for ticket buyers” as opposed to the ticket agency.

According to Eventim, the Landgericht’s ruling confirmed that the ticket seller is “neither obliged to reimburse the ticket price nor the advance booking fee”, which is the responsibility of the concert organiser. CTS Eventim CEO Klaus-Peter Schulenbgerg, who says his company should never have been the defendant in the case, criticises the lawsuit as nothing more “PR for their own ends” by Verbraucherzentrale NRW.

Additionally, the court found that tickets for shows which have been postponed – as opposed to cancelled outright – remain valid for the rescheduled events, according to MusikWoche. In Germany, a ticket voucher scheme allows promoters to issue vouchers for rescheduled events in lieu of cash refunds.

Both sides have a month to appeal the court’s verdict, which is not yet final.

 


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Viagogo fined for breaking Italian anti-touting law

An Italian court has rejected an appeal by Viagogo against a €3.7 million fine for hosting listings for tickets sold in contravention of Italian law.

The judgment, handed down by the regional administrative court (TAR) of Lazio (Latium) on 2 April, upholds a 2020 ruling in favour of the Italian Communications Authority (AGCOM), which brought legal action against the secondary ticketing site for listing tickets to 37 events at above face value between March and July 2019.

Ticket touting is effectively illegal in Italy under the country’s 2017 budget law, which states that tickets to entertainment events may only be sold by authorised retailers. Consumers are permitted to sell unwanted tickets only for a price equal to, or less than, their original face value.

The judges rejected Viagogo’s argument that it was acting merely as a “passive hosting provider” connecting resellers with potential buyers, which would exempt the resale platform from liability under Italian law. 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 service provided by Viagogo […] does not have the characteristics of passive hosting,” the court concluded, “given that it clearly does not consist merely of the ‘storage of information’ but rather optimisation, advertising and promotion of the tickets on sale.”

“Uncapped secondary marketplaces … have long been shielding under the liability exemption offered by EU law”

“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,” adds the ruling.

Additionally, 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 authorities, according to the court.

The ruling follows similar decisions in both Italy (Mediaset v. Yahoo) and the European Court (L’Oréal v. eBay, Google v. Louis Vuitton) which have held websites responsible for the content ‘passively’ hosted on their platforms.

“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,” comments Sam Shemtob, director of the Face-Value European Alliance for Ticketing (FEAT).

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

 


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Viagogo CH ‘selling tickets to cancelled shows’

Switzerland’s Consumer Protection Foundation is taking legal action against Viagogo for allegedly selling tickets to events it is clear will not go ahead.

The secondary ticketing marketplace, which is headquartered in Geneva, has taken advantage of “the chaos of uncoordinated, pandemic-related lockdowns” across the world to “systematically” sell tickets for events that it knows will not take place, alleges the Stiftung für Konsumentenschutz of German-speaking Switzerland.

To test its theory, in mid-January Stiftung bought two tickets from Viagogo: One for a comedy show by Stéphanie Berger at the Kofmehl venue in Solothurn and another for a “concert by two Dutch musicians” in Amsterdam, taking place in mid-February and mid-March, respectively. Both events had already been cancelled at the time of the ticket purchase.

Viagogo denies the charges, saying in a statement that if tickets for cancelled events are offered for sale, “it is a mistake”. Anyone who has purchased tickets for a cancelled show is entitled to a full refund, the company adds.

“From our point of view, this is a fraudulent business model”

Announcing the filing of a criminal complaint, the Consumer Protection Foundation claims Viagogo is “shamelessly exploiting” confusion over country-specific restrictions on live events. “Consumers can hardly check whether these are actually taking place due to local requirements, especially at events abroad,” it says in a statement.

Sara Stalder (pictured), the foundation’s managing director, says that by selling tickets for events that are not taking place, Viagogo has violated Swiss legislation against unfair competition. “This law says that a company may not offer products that are not in stock,” she explains. “From our point of view, this is a fraudulent business model – and we are curious to see what the judiciary will say about it.”

Writing for IQ last month, Adam Webb of anti-ticket touting group FanFair Alliance discussed media reports in the UK that alleged Viagogo is reliant on speculative selling, and that much of the ticket inventory on the site “doesn’t actually exist”. Viagogo disputes the claims, saying it has “has strict measures in place to ensure the accuracy and compliance of listings and to prevent fraudulent selling”.

 


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Austrian court finds against Viagogo T&Cs

In a probe into Viagogo’s terms and conditions, the supreme court of Austria has found more than 40 clauses of the secondary ticket site’s general terms for buyers and sellers are illegal.

Finding in favour of VKI, the Austrian Consumers’ Association, the Supreme Court of Justice (Oberster Gerichtshof, OGH) ruled that 42 clauses of the site’s general T&Cs, including provisions on refunds, replacement tickets and the supremacy of Swiss law, are unlawful in Austria.

Notable clauses deemed illegal in the OGH ruling include:

“We hope the OGH’s decision encourages other jurisdictions to ensure that their consumers are equally protected”

According to anti-touting group FEAT (Face-value European Alliance for Ticketing), Viagogo will legally be required have to amend all 42 clauses, both for viagogo.at and for Austrian consumers accessing the site via viagogo.com.

“For a platform that claims to serve fans, the level of protection that Viagogo offers its users, as brought to light in this ruling, is shocking,” comments FEAT campaign lead Katie O’Leary. “We welcome the OGH’s decision and hope that it encourages other jurisdictions to ensure that their consumers are equally protected.”

In May, the OGH ruled that Viagogo and other secondary ticketing sites must disclose the identity of ticket sellers, including name and address, and whether tickets are personalised ahead of ticket purchase.

 


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Live Nation sues insurer for non-payment

Live Nation is suing insurer Factory Mutual (FM) for failing to cover its “unprecedented” losses as a result of the nearly year-long concert business shutdown.

Beverley Hills-based Live Nation, the world’s biggest live music company, is taking legal action against Factory Mutual Insurance Co. in the former’s home state of California for allegedly wrongfully refusing to pay out, despite Live Nation’s policy including business interruption cover from FM.

“Covid-19 has had a dramatic impact on Live Nation’s properties and business, causing severe and unanticipated losses,” reads the complaint, filed in the US district court for central California.

It adds that LN “reasonably” believed that Factory Mutual Insurance Co. would promptly cover its losses, as it has an “all-risks policy” that covers lost income, property damage, extra expenses and, crucially, interruptions from communicable diseases.

In November, leading booking agency UTA similarly sued its insurance provider, Chubb, after being denied compensation for any of its estimated US$150m in losses stemming from the pandemic pandemic.

“We strongly believe our insurance policies are clear on the coverage provided”

In a statement provided to Bloomberg Law, Factory Mutual says it strives to be clear on what its policies cover. “FM Global values the long-term relationships we have with our policyholders and we are proud in leading the industry for claims service,” it reads.

“It is unfortunate when legal matters arise because we strongly believe our insurance policies are clear on the coverage provided.

Despite posting a more than 80% revenue decline in the first nine months of 2020 (the most recent available financial data), Live Nation’s share price recently reached an all-time high of $76.54. At press time, it is just over $70.

Learn more about what the next 12–24 months look like for policies and cover at Insurance: The Big Update, at ILMC on 3 March.

 


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