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Legal Eagle

Defamation

Q: Is it defamatory to call someone a tout?

Is it defamatory to call someone a tout, just because they charge over the odds for a ticket?

A: There is no doubt that calling someone a tout in the context of ticket sales is a derogatory term and therefore capable of being defamatory as tending to lower the reputation of the individual concerned in the estimation of right thinking members of society generally.

However, you have given no indication of the circumstances, other than to say that the person concerned was, as you put it, charging "over the odds". It is therefore impossible for me to give you a definitive opinion as to whether in the particular circumstances of the case the conduct complained of was that of a 'tout' and if so whether the individual concerned was guilty of such conduct. In any event my opinion would not count since such matters are for a jury to decide based on the evidence placed before it.

Some cases are clear cut and others are not. In my view there are two particular elements involved, which are firstly a proactive selling approach and secondly a resale offer price which constitutes an excessive mark-up on the face value of the ticket (in the industry 25% is the maximum mark-up unofficially considered 'respectable'). At least one of these two elements must always be present but there are instances when one without the other may be regarded as insufficient to constitute 'touting'.

There are regulations, made in 1994, which are confined to instances where tickets purchased for entertainment events are resold in the course of business. Under these regulations the seller must, prior to sale, give a price indication of the face value of the ticket concerned (which must be in writing unless the transaction is by telephone) and must also, whether orally or in writing, take all reasonable steps to disclose to the prospective purchaser the seat location and any adverse features such as a restricted view.

Violation is a criminal offence punishable by a £5,000 fine. Holders and promoters of the entertainment event concerned and their duly authorised agents are exempt.

However, these regulations are not necessarily to be regarded as a yardstick or benchmark as to what is or is not 'ticket touting'. It is perfectly possible to be a 'ticket tout' in common parlance without acting unlawfully.

So far as defamation is concerned, there may well be a distinction between calling someone a 'ticket tout', as in your case, which arguably implies habitual and regular behaviour as such, possibly as a business, and 'acting like a ticket tout' which may be used to describe one particular transaction.

Context and innuendo, as well as justification (or lack of it) for attaching such description to the particular facts of each case, are therefore matters of primary concern for a jury and for the lawyers involved in addressing them in any suit for defamation.

First published February 2006