Oireachtas Joint and Select Committees
Wednesday, 2 June 2021
Select Committee on Jobs, Enterprise and Innovation
Sale of Tickets (Cultural, Entertainment, Recreational and Sporting Events) Bill 2021: Committee Stage
I thank members and witnesses for participating in today's meeting in line with the exceptional circumstances with which we must deal under Covid-19. I remind them that apart from myself and members of the committee secretariat, all members and witnesses are required to participate remotely, but from within the Leinster House complex only. Should a division occur, members will be required to make their way to the meeting room within the normal division time in order to vote and to then return to their original location. No apologies have been received.
As normal, all documentation for the meeting has been circulated on MS Teams. The meeting is being convened for the purpose of consideration of the Sale of Tickets (Cultural, Entertainment, Recreational and Sporting Events) Bill 2021 which was referred to the select committee by order of the Dáil on 13 May.
I welcome the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Troy, and his officials to the meeting. Does the Minister of State wish to comment briefly?
No, I am okay. I thank the committee for its co-operation to date. I appreciate its work on pre-legislative scrutiny on the scheme of the Bill. It proved beneficial. Four of the seven recommendations have been adopted and included in the Bill, so it was a worthwhile exercise. I thank the committee for its co-operation in that regard.
There are ten amendments which will be grouped as follows for the purpose of the debate: amendments Nos. 1, 2, 8 and 9 may be taken together and amendments Nos. 6 and 7 may be taken together. All other amendments will be discussed individually. I propose that we try to complete our consideration of Committee Stage of the Bill today. Is that agreed? Agreed.
I move amendment No. 1:
In page 6, between lines 14 and 15, to insert the following: “ “communications media” means a broadcasting service, a broadcasting services platform, or newspapers or periodicals consisting substantially of news and comment on current affairs within the meaning of section 2 of the Broadcasting Act 2009;”.
I will speak to amendments Nos. 1, 2, 8 and 9 because, as the Minister of State will see, they are all pretty much connected. The amendments concern the insertion of definitions of "communications media" and "social media platform" specifically to cover the two mediums to ensure that secondary ticket sellers comply with section 17. The concern, as I am sure the Minister of State will appreciate, is that social media platforms are not included. These are fairly technical amendments. Is the Minister of State satisfied that the definitions already contained in the Bill do not need to be strengthened? In my experience, small as it is - it is a long time since I bought a lot of tickets for concerts - tickets are quite regularly sold on social media platforms as well as on traditional media such as other websites and all the rest. People share and advertise much of this information on social media. I just want to be satisfied that the definitions contained in the legislation will be sufficient to cover any possible scenario. We know social media and the social media platforms are very fast-moving technologies but, to the greatest extent possible, we need to be satisfied that all eventualities are catered for, and that has to include social media.
I thank the Deputy. I fully appreciate from where she is coming. I hope that the official explanation I will provide will relieve her anxiety or confirm there is no need for this amendment and that, for that reason, we are not proposing to accept it. The proposed amendments to section 17(1) and section 17(2) are unnecessary in my view. The amendment to section 17(2) is also drafted in such a way that it would not achieve its aim. The definitions amendments Nos. 1 and 2 propose to insert in section 2 are necessary only if amendments Nos. 8 and 9 to section 17 are adopted.
The purpose of the four amendments is essentially to broaden the scope of sections 17(1) and 17(2) so that the information requirements for secondary ticket sellers in section 17(1), and the obligation on secondary ticket operators in section 17(2) to ensure that secondary ticket sellers comply with these requirements, would apply to advertisements or offers for the sale of tickets or ticket packages on social media platforms and through communications media as well on secondary ticket marketplaces. The addition of a reference to social media platforms in sections 17(1) and (2) is not necessary as these platforms come within the scope of "secondary ticket marketplace" as that term is defined in section 2(1), that is, a website, online service, electronic application or print publication which provides a secondary ticket seller with a facility for the sale or advertising for sale of tickets or ticket packages, including a marketplace that also provides a facility for the sale or supply, or advertising for sale or supply, of goods or services. Like the proposed definition of social media platform, the definition of secondary ticket marketplace refers to a website and an application. It is broader than the corresponding part of the proposed definition of social media platform in that in also includes an online service. The second part of the definition of secondary ticket marketplace makes clear that the term includes marketplaces that provide a facility for the sale or supply of services or goods other than tickets.
The addition of a reference to electronic communications media in sections 17(1) and (2) is unnecessary for various reasons. Secondary ticket sellers do not advertise or offer tickets for sale on the broadcasting services and platforms that come within the scope of the proposed definition of electronic communications media. Event organisers and primary ticket sellers that sell to a wide general audience advertise widely on broadcast media but secondary ticket sellers confine their advertisements and offers to marketplaces that provide a facility for the sale of tickets and permit ticket resellers to engage directly with prospective purchasers. The broadcast media covered by the definition of electronic communications media are vehicles for general advertising and do not provide a means whereby secondary ticket sellers can engage individually with prospective buyers. The definition of secondary ticket marketplace applies already to print publications which provide a facility for the sale or advertising for sale of event tickets.
Furthermore, the amendment to section 17(2) is framed in a way that would prevent it from achieving its aim. The obligation in section 17(2) to ensure that tickets are not advertised or offered for sale without the ticket seller providing the specified information is on the secondary ticket operator. Section 2(1) defines "secondary ticket operator" as a person who, in the context of a secondary ticket marketplace, owns or manages the marketplace or is otherwise responsible for its operation, as well as a person acting for, or on behalf of, such a person.
As the definition and section 12(2) are worded, the proposed amendment to section 17(2), therefore, would not extend the obligation to ensure that the secondary ticket sellers comply with information requirements of 17(1) to the operators of social media platforms and electronic communications media.
I thank the Minister of State for that clarification. He can see where I was coming from and that the intention of the amendment was more of a belt, braces and baler twine kind of proposal. I am satisfied that on the basis of the confirmation given to me by the Minister of State that the matters are already covered within the legislation and I thank them for the clarification. With the leave of the Chairman, I am happy to withdraw amendments Nos. 1, 2, 8 and 9, on the basis that we have had this discussion and that the Minister of State has clarified that social media platforms are already covered. That was my concern and I was not intending to do anything other than take, as I said, a belt, braces and baler twine approach. I thank the Chairman and with his permission I will withdraw those amendments.
I move amendment No. 3:
In page 8, between lines 27 and 28, to insert the following:
“(2) It shall be necessary to provide proof that a notice or other document served on or given to a person under subsection (1) has been received by the person concerned.”.
This, again, is a technical amendment and I am hoping that the Minister of State will be able to put my mind at rest or, as he says himself, to allay my anxiety. I will be up all night worrying about it but it is something that is worthy of concern. As it stands the amendment states that: "It shall be necessary to provide proof that a notice or other document served on or given to a person under subsection (1) has been received by the person concerned". The amendment is included therefore as an addition to Section 5 to ensure that where notice has been provided under the section that the person cannot turn around and simply claim that they did not receive the notice. This is particularly pertinent for paragraphs (b) and (d) whereby the documents could be left at the address of the person concerned or sent by electronic means. In both cases a situation could possibly arise where the person concerned simply claims that they have not received the documents. I do not think that anyone, either myself or the Minister of State, want to find ourselves in a situation where we open the pages of a newspaper and we hear that such a person is in effect not covered by the provisions of the legislation because they simply say that they did not receive the documentation. The intention of this amendment is to tighten that up. Again, as with the previous amendments, I would welcome some comfort from the Minister of State on this point, please.
The provisions on the service of a document are found in the statutes dealing with a wide range of different areas. Section 5 of the Bill is in accordance with the corresponding provisions in other enactments. Officials of my Department have examined the provisions on the service of documents in all of the Acts adopted over the past decade. None of the 20 or so Acts examined include the provision along the lines proposed by Deputy O'Reilly. Including such provision in this Bill would have wider and possibly unforeseen consequences for provisions on the service of documents throughout the Statute Book. The case for a proof provision along the lines proposed needs to be examined in a wider context than just in this Bill and we are therefore not in a position to accept this amendment.
I thank the Minister of State for that reply because as an aside, this might be something that we should have a discussion about because the capacity exists for people to simply rock up to court, shrug their shoulders and say that they did not receive any letter. That is a broader problem and I accept what the Minister of State is saying about the potential knock-on consequences. Equally, if the Minister of State is satisfied that the provision that I have sought is not actually necessary, or indeed is perhaps necessary as part of a bigger conversation. The amendment is a technical one and is intended to strengthen the legislation to ensure that people do not have a ready-made excuse to simply wriggle out of their responsibilities. On the basis of what the Minister of State is saying I do not intend to push this amendment. I would welcome, however, an engagement with the Minister of State, perhaps separate to this legislation, to discuss that particular rule. I appreciate the statutes that exist and the potential for the knock-on consequences of accepting this amendment. Notwithstanding that, this is a discussion that is definitely worth having.
I cannot disagree with the Deputy on that point. She is right as this does warrant broader discussion but outside the context of this Bill. To do that in isolation just in this Bill could have unforeseen consequences on other legislation. I appreciate the spirit in which the Deputy is offering to withdraw it and the point raised by the Deputy warrants further discussion, examination and perhaps it is a matter that we should refer to the Office of the Attorney General.
On that basis I will be very happy if this matter is referred to the Attorney General which will necessarily spark a broader conversation. The amendment is a technical one, I accept what the Minister of State is saying, and on that basis I am content to withdraw it.
I move amendment No. 4:
In page 9, line 8, to delete “1,000 persons or more” and substitute “an event or events”.
This amendment is designed to remove the requirement for there to be 1,000 persons or more and to replace it with the words: "an event or events" and not to have 1,000 persons stated in the provision. There are a number of reasons I am proposing this amendment. The Minister of State will know as I do that many events with fewer than 1,000 people in attendance see tickets sold at over the face value and that is an issue. This is also something in the context of the pandemic that is going to become perhaps a bigger issue in the short term than it might otherwise be because, for a great many venues, their numbers are going to be restricted. It is restricted numbers which are driving up the prices in many instances. We know that people are going into the marketplace, purchasing in bulk and then selling on, which is a significant problem. That is a problem that is exacerbated when bigger venues, even venues that could reasonably accommodate over 1,000 people, for the next while may not be able to accommodate more than 1,000 people. We need to give some consideration to broadening this definition.
If one takes the trial sporting and music events, five of them have fewer than 1,000 people who will be in attendance. I understand that for the first few trial events, the tickets are going to be tightly controlled but that is not going to be the case for every event. As hospitality begins to open up, it is not going to be a matter of clicking one's fingers and being back to February 2020 by any manner or means. Consideration should be given as this is a long-term issue, but is highly pertinent in the short term, given the restrictions and the likelihood in many of these venues that tickets will be very much sought after. We are all eager to get back to some kind of normal live entertainment, whatever it is that one wants to be doing, be it sports, music or whatever. With the current climate and the restrictions in place, this is highly pertinent but it is pertinent in any event and I would welcome hearing the Minister of State's views on this issue.
I genuinely accept where the Deputy is coming from with this amendment and I was of a similar view myself but I will give the Deputy the rationale behind why we cannot accept the amendment and we will see what the Deputy thinks of it. The first of the conditions for the application for the designation of a venue in section 7(1) states that the venue has the capacity to hold 1,000 persons or more.
The effect of Deputy O’Reilly’s amendment would be to change this condition to "the venue has the capacity to hold an event or events." When she references Covid-19 restrictions, the capacity of the venue that will count is not the temporary capacity, but the real capacity, so to speak. When she talks about the 5,000 people who will be allowed into Croke Park, that is not the capacity that will be designated for the purpose of this; it will be the 80,000. I am sure she is aware of that but I say it for the purposes of clarity.
The amendment would make a major change to the provisions on the designation of venues in section 7. While I appreciate that the amendment stems from a constructive desire to strengthen the Bill, I cannot accept it.
The provisions on the designation of events and venues are a central pillar of the Bill, and the capacity threshold of 1,000 which applies to the designation of venues under section 7(1) is a core element of the venue designation provisions. The committee’s pre-legislative scrutiny report did not propose a change in this capacity threshold. A major change of the kind proposed to the provisions on the designation of venues would possibly affect the objective necessity and proportionality of the obligations placed on ticketing businesses by the Bill. Legal advice would be needed on this point before such an amendment could be considered.
However, perhaps most importantly the removal of the capacity threshold of 1,000 would require the resubmission of the Bill to the European Commission in accordance with the provisions of Directive 2015/1535 on the procedure for the provision of information on technical standards and rules on information society services. The scheme of the Bill was submitted to the European Commission in accordance with this requirement in February 2020 and no issues of compatibility with EU law were raised by the Commission or other member states.
The directive provides, however, that where a proposed national measure is subsequently amended in a way that significantly alters its scope, the measure must be resubmitted for further examination. Removing the capacity threshold for venue designations would constitute a significant alteration of the scope of the Bill. If the Bill had to be resubmitted, the result would be that it could not be enacted for a period of at least three months from the date of its notification to the European Commission. I believe that we all understand and accept the need for the early enactment of this Bill, particularly given that sporting and entertainment events are shortly due to recommence with restricted attendances with all the potential for ticket touting that might present, as the Deputy mentioned.
My Department considers that the capacity threshold of 1,000 which applies to applications for the designation of a venue will cover the great majority of venues that are likely to host the type of high-demand events that can be expected to give rise to appreciable levels of ticket resale. If a venue with a smaller capacity is due to hold a high-demand event, it will have the option to apply for the designation of the event. The Minister for Enterprise, Trade and Employment will also have a reserve power under section 7(6) to designate a venue with a capacity of less than 1,000 after consultation with the venue operator. If it emerges after the Act has been in operation for a time that the capacity threshold of 1,000 is impairing the effectiveness of the Act, it can be reviewed and, if necessary, amended.
I welcome the clarification the Minister of State has given. While it may not necessarily apply in this case, if resubmission to the European Commission is required to make it right, that should happen. We should not rule something out purely and simply because it might take some time or require some paperwork. That is a separate issue. I never like to hear Ministers say that while something might or might not be the right thing to do, we are not going to do it because we might need to resubmit it. I know that is not all the Minister of State is saying.
I am content with the explanation given about the restrictions. The venues will be designated based on their capacity in normal times rather than their capacity based on Covid restrictions. I had not been certain about that and I welcome the clarification.
I ask the Minister of State to give me an assurance that he will keep a close eye on venues with a capacity of less than 1,000. I am concerned that these may fall between the cracks. I understand that the Department is busy. While we are talking about it today, it might not be a priority in a few months' time. That is not to say that people will not try and will not do their best, but it is in the nature of things. I ask the Minister of State to give me an assurance that the Department will keep a very close eye on this or that we can review the operation and have an opportunity to amend if required. The spirit of the amendment and the intention is to ensure that as many venues, events and people as possible are covered by the legislation. I would welcome an assurance from the Minister of State that the Department will pay close attention to the slightly smaller venues with a capacity of less than 1,000.
I think we are all in unison. We want to ensure that legitimate fans and patrons can get access to their particular choice of relaxation, whether that is sport, culture or music and can do so at fair value. We have done that with this Bill after consultation and pre-legislative scrutiny as well as following Private Members Bills proposed by this committee's Chairman, the former Deputy, Noel Rock, and the Minister, Deputy Stephen Donnelly. Considerable consultation has gone into this and a capacity of 1,000 was deemed to be proportionate.
If a smaller venue, with a capacity of less than 1,000 is due to hold a big-ticket event that will give rise to much greater demand, it can make an application for that specific event in that venue to protect it in that instance. I would expect that if it is not working as envisaged and smaller operators are falling foul of illegal practices, they can look for a review themselves or they can approach the Department. Under the provisions of the Bill, the Minister of the day has the power to designate a venue with a capacity of less than 1,000.
Earlier the Deputy referred to belts, braces and baling twine. We have plenty of protections here if we find that it is not working for venues with a capacity of under 1,000.
I thank the Minister of State for that clarification, which is spot on. The intention of my amendment is not to delay anything but to have this discussion and ensure that the record reflects the spirit and intention of the legislation. I will withdraw the amendment, but I reserve the right to reintroduce it on Report Stage because I want to carry out some more investigation. Perhaps the Minister of State and I can have a chat about this. It is a genuine concern about people falling between the cracks. We are all on the same page in this. This is done in the spirit of co-operation.
I will commit to asking my officials to review it in advance of Report Stage. I appreciate the Deputy's point of view. I had the same thinking but when we went through it and fleshed it out, I realised that we are have plenty of safeguards in place. We can certainly review it again.
I move amendment No. 5:
In page 11, to delete lines 38 and 39.
During engagement with the Department, did representatives of the industry indicate reluctance to register?
A fee always dissuades people. There is no dispute about that. Fees are sometimes introduced as a deterrent, which I accept is not the case here, but I am concerned that the inclusion of a fee here might dissuade people. Section 7(3) provides for the charging of a fee, which, I believe, might act as a deterrent. I am interested in hearing from the Minister of State what consultation that took place in that regard, how he envisages it will operate and if he believes or not that a fee will act as a deterrent. If he is satisfied that the opposite can be demonstrated, I am happy to accept that.
In all of the Deputy's amendments up to this point I could where she was coming from and I have taken them in the spirit in which they were tabled. Likewise, I take this amendment in the spirit in which it is proposed, but I disagree with it. The amendment proposes the deletion of section 9(4), which provides that the Minister for Enterprise, Trade and Employment may prescribe a fee to accompany an application for the designation of an event under section 9(1). While section 9(4) provides that the Minister "may" provide a fee for the designation of an event, it does not require the Minister to do so.
The Bill has been introduced, in part, following demands from sporting bodies and event promoters that Government take action to tackle ticket touting. There are means such as personalised and paperless tickets available to promoters and sporting bodies that would make it more difficult for ticket touts to resell tickets for gain. These options involve costs for event organisers. The enactment of this Bill will result in the cost of tackling ticket touting instead being largely borne by the State. It is not, in my opinion, unreasonable, therefore, to include a provision under which promoters and sporting bodies who will benefit from the legislation may be required to pay a fee for the designation of their venues or events. Any such fee would be set by reference to the administrative costs incurred in processing applications for designation and will not be used as a revenue raising measure.
While Deputy O’Reilly’s amendment proposes to delete the provision authorising fees for applications for event designation, it leaves untouched the provision at section 7(3) which permits the Minister for Enterprise, Trade and Employment to prescribe a fee for applications for the designation of a venue. This is, presumably, because venue designations will cover all events in a venue over a long period of time and are more likely to be applied for by the operators of large venues. Event designations by contrast will generally apply only to a single time-limited event. A situation in which fees can be charged for one type of application for designation and not for another is open to question, however, and, depending on the level of the fee, could lead some venue operators to apply for a series of event designations rather than a more permanent venue designation.
The aspiration and thought-process is that any such fee would be set by reference to the administrative costs incurred in processing the application and this provision will not be used as a revenue raising measure.
I thank the Minister of State for the clarification. Does he have any idea of the level at which the fee will be set? It is all very well to say it will not be used as a revenue raising measure, but he and I know, that the view of the people who will be paying it might be that it is a revenue raising measure. Can he give a ballpark figure for the fee?
On section 7(3), I, probably, should have included it for amendment. That was an oversight on my part, but the Minister of State knows where I am coming from on this issue. I would welcome it if he could given an indication of the level of the fee and confirm if he is confident that it is not likely to act as a deterrent, which is my concern, and confident that we will not end up with a situation whereby people would find the process prohibitively expensive because the fee is only to cover the administrative costs. Can he give us a ballpark figure for where the fee might land?
I do not believe it will act as a deterrent. Many of the sporting bodies and events promoters have called on Goverment to take action against ticket touting. There are measures that they could have taken in terms of personalised and paperless tickets, which would have made it far more difficult for ticket touts to resell tickets, but owing to the costs associated with bringing in those systems they have not done that. There will be an associated cost under this system to the Department. It is for that reason we are providing for the introduction of a fee to cover the administrative costs. As the administrative burden will be insignificant, the fee will be very affordable. We do not yet have a figure in mind, but it will not excessive or a deterrent because we want venues to apply for a designation. We also want to cover any associated administrative costs.
Am I correct that the intention is that any fee applied will be solely in respect of the recoupment of administrative costs? In other words, it is not intended for anything else? I accept that as stated by the Minister of State this is not a revenue generating measure. That should not be the case.
On the fee, I remain concerned that it will act as a deterrent. Anything that acts as a deterrent to people is problematic. However, the Minister of State has given an assurance that the fee will be an administrative fee and not a revenue generating measure and I am satisfied with that explanation. As in the case of the previous amendment, I propose to do a little more research on this issue with a view to resubmitting the amendment on Report Stage, if necessary. As the Minister of State has confirmed that it is an administrative fee and not a revenue raising measure, I am content to withdraw the amendment for now.
I appreciate that. As I said, the Bill provides that the Minister "may" prescribe a fee, not that he or she shall prescribe a fee. If a fee is prescribed, it be only in respect of administrative costs. That is our intention.
I move amendment No. 6:
In page 15, line 9, to delete "section 7(1)" and substitute "subsection (1) of that section".
These are technical amendments which address incorrect cross-references in section 13. Section 13(5)(c) provides that a District Court judge may make an order confirming the revocation of a venue designation under section 8(1) on the grounds that the requirements of section 7(1) have been satisfied. As section 7(1) specifies the conditions for the making of an application for the designation of a venue, the effect of the current wording of section 13(5)(c) is to suggest that a court order may confirm the revocation of a venue designation by the Minister on the grounds that the conditions for designating a venue have been satisfied. This is clearly incorrect. The effect of the amendment is to provide instead that a District Court judge may make an order confirming the revocation of a venue designation on the grounds that the conditions for the revocation of such a designation in section 8(1) are satisfied.
Amendment No. 7 addresses a similar cross-referencing error in section 13(6)(c). Section 13(6)(c) provides that a District Court judge may make an order confirming the revocation of an event designation under section 10(1)(a) on the grounds that the requirements of section 9(1) have been satisfied. As section 9(1) specifies the conditions for the making of an application for the designation of a venue, the effect of the current wording of section 13(6)(c) is to suggest that a court order may confirm the revocation of a venue designation by the Minister on the grounds that the conditions for designating an event have been satisfied. Again, this is clearly incorrect. The effect of the amendment is to provide instead that a District Court judge may make an order confirming the revocation of an event designation on the grounds that the conditions for the revocation of such a designation in section 10(1)(a) are satisfied.
I advise that I will be moving a technical amendment to section 13(6)(e) on Report Stage in order to clarify the application of the subsection.
I move amendment No. 10:
In page 20, line 20, to delete “section 18” and substitute “section 21”.
This is another technical amendment, which addresses an incorrect cross-reference in section 23(2). Section 23 deals with the power of a member of An Garda Síochána to arrest a person without warrant in certain specified circumstances. Subsection (2) begins with the words, "Without prejudice to the generality of section 18”.Section 18, however, deals with the exemption of charitable organisations from the application of sections 15 to 17 and has no relevance to Garda powers. Section 23(2) should refer instead to section 21 as that section deals with the general powers of entry and search of members of An Garda Síochána.
I thank the Minister and his officials for attending today's briefing. I look forward to the Bill being enacted and implemented as soon as possible. I have a keen interest in this legislation because I introduced a similar Bill in the previous Dáil. While my name is not on this Bill, I do not have a problem with that and I am delighted to see it progressing. I thank everybody who has contributed not just today but at all of the committee meetings we had on this legislation.
I am conscious that we have a private meeting at 11.30 a.m. As there is no other business, I thank members for participating in today's meeting under the exceptional circumstances of the Covid-19 pandemic and for dealing with the Bill as efficiently as possible.