The World Today - Monday, 18 December , 2006 12:45:00 Reporter: Kathryn Roberts ELEANOR HALL: The online auction site eBay has won its legal case against the promoters of the Big Day Out music festival and their new anti-scalping ticketing policy.



This year the Big Day Out promoters changed the conditions on the festival tickets, warning that any resold at a profit online would be invalid.



But eBay argued that the policy was misleading and created for confusion for online traders.



Kathryn Roberts joins me now from Federal Court in Sydney, where the judgment has just been handed down.



So, Kathryn, what was the basis of this judgment in favour of eBay?



KATHRYN ROBERTS: Eleanor, just a background, in order to prevent scalping the promoters of the Big Day Out this year changed the conditions attached to its tickets. So it stated on its tickets that the ticket would be cancelled if it was sold for a profit through online auction sites, and the new ticket holders would therefore be refused entry to the festival.



Now, eBay alleged that this was misleading under the Trade Practices Act for a number of reasons, including that the promoters of the Big Day Out could not guarantee that every ticket resold for a profit in this manner would be void, and that the Big Day Out promoters didn't have the means to detect which tickets were resold in this way to justify the warning on its tickets.



So the court this morning has found in eBay's favour, saying that the conditions of sale conveyed were misleading or were a misleading representation, and that the Big Day Out promoters were not legally entitled to cancel tickets, and could not necessarily detect tickets resold in this way. So the judge did appear to have reached the conclusion somewhat reluctantly.



ELEANOR HALL: So, to some extent, a win on a technicality for eBay, but did the judge have anything to say on the broader issue of selling on or scalping tickets?



KATHRYN ROBERTS: He did indeed. In his concluding remarks, of his published judgment, and I'll read out a statement. He says, "The result at which I've arrived is unfortunate. I am satisfied that the promoters of the Big Day Out intended, by the new condition, to protect the market from cynical exploitation by scalpers who create an artificial scarcity of tickets".



He went on to say that "the scalpers then use sites such as eBay's webpages to make large profits for themselves, and eBay itself profits from this practice, and while there may be cases in which purchasers of tickets who bought intending to attend the Big Day Out festival subsequently find themselves unable to attend, and need to sell. The evidence suggests that the most sales on eBay are by scalpers preying on the desire of music fans to attend an event which was sold out early to scalpers".



And he went on to say that therefore he was not mindful to grant eBay any audits of corrective advertising.



ELEANOR HALL: So, Kathryn, what does this mean for people wanting to buy their tickets through online auction sites?



KATHRYN ROBERTS: Well, both parties are still digesting the judgment at this stage. The broader ramifications for buying and selling tickets online is also yet to be made clear, however lawyers for the Big Day Out promoters have indicated in court it seems that it's a free-for-all for scalpers now, and in fact the parties are still in court at this moment debating how they could proceed from here, how the Big Day Out could resolve the issue.



Lawyers for the Big Day Out have indicated it wouldn't be possible to reprint the tickets, for instance, but they could, for example, put notices on the websites where people are purchasing the tickets.



ELEANOR HALL: Kathryn Roberts at the Federal Court in Sydney, thank you.