With under 500 days to go before the 2012 Olympic Games, draft secondary legislation targeting ambush marketing around Olympic and Paralympic events has been issued for consultation. Nick Johnson reports.
Topic: Ambush marketing
Who: Department for Culture, Media and Sport (DCMS), Scottish Parliament, Welsh Assembly
Where: UK
When: 7 March 2011
Law stated as at: 1 April 2011
What happened:
The UK, Scottish and Welsh governments have issued draft statutory instruments regulating advertising and street trading around Olympic and Paralympic events during the London 2012 Games. The London Olympic Games and Paralympic Games (Advertising and Street Trading &c.) (England) Regulations 2011 and their Welsh and Scottish equivalents set out detailed provisions in these areas, pursuant to the London Olympic Games and Paralympic Games Act 2006 (the “2006 Act”). They have been issued for consultation, with the closing date for responses being 30 May 2011.
The advertising restrictions proposed in the draft Regulations would apply for a limited time only, and only within limited geographical areas:
- Advertising activity would be restricted only in the vicinity of the various Olympic and Paralympic events, with “vicinity” defined by reference to map plans. Generally the restricted zone covers the event venue and an area a few hundred metres around its perimeter, but this varies from location to location. For the marathon and road cycling, the zone is just a few metres either side of the road. In other cases, the zone goes further than a few hundred metres, so as to cover main spectator access routes and other strong ambush marketing opportunities.
- The Regulations would apply for different periods for the different event venues, depending on when the events themselves take place. In some cases, they would apply for just a couple of days (eg the Olympic marathon zone is restricted solely on 5 and 12 August 2012). The longest restriction applies to the Olympic Park zone, which would be covered for 22 days for the Olympic Games and a further 13 days for the Paralympic Games.
During the restricted periods, unauthorised advertising activity within the defined event zones will be prohibited, subject to some limited exceptions. Breach of the Regulations would give rise to a criminal offence under the 2006 Act. The Regulations may be enforced by the police, and also by enforcement officers designated by the Olympic Delivery Authority (ODA). It is envisaged that the advertising restrictions will be enforced primarily by the latter. The consultation paper suggests that these will mostly be local authorities’ Trading Standards officers.
“Advertising activity” is defined very broadly in the draft Regulations as “displaying an advertisement, or… …distributing or providing promotional material”. It is expressly stated as including “projecting, emitting, screening or exhibiting an advertisement”, “carrying or holding an advertisement or an apparatus by which an advertisement is displayed”, “providing for an advertisement to be displayed on an animal or an apparatus by which an advertisement is displayed or to be carried or held by an animal” and “wearing advertising attire as part of an ambush marketing campaign”. “Advertisement” is defined as “any word, letter, image, mark, sound, light, model, sign, placard, board, notice, screen, awning, blind, flag, device, costume or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purpose of, promotion, advertisement, announcement or direction”.
The draft Regulations provide for some limited exceptions to the advertising restrictions. So, for instance:
- Normal road signs are specifically exempted. (They would otherwise be caught as a “sign… …in the nature of, and employed… …for the purpose of … …announcement or direction”.)
- Normal JCDecaux, Clear Channel etc branding on street furniture is permitted.
- Normal estate agents’ “sold”, “to let” etc signs are permitted.
- Members of the public will not be committing an “advertising activity” offence merely by virtue of wearing branded clothing, unless they know or have reasonable cause to believe that they are participating in an ambush marketing campaign. (But persons distributing branded clothing or other items as part of an ambush marketing campaign would still be liable.)
Why this matters:
We will look in a future article at some of the potential ambush marketing loopholes in the proposed legislation. For now, we will focus on a few other specific areas of the draft Regulations that don’t seem quite right:
1. Guilty until proven innocent. Contrary to the usual burden of proof in criminal cases, directors, managers and other senior staff of businesses that are promoted in ambush marketing activity, or otherwise involved in the activity, will themselves be guilty of an offence unless they can prove that the contravention took place without their knowledge or that they took all reasonable steps to prevent a contravention. This extraordinary derogation from the normal position under the European Convention on Human Rights is something that could catch out not just the senior staff of ambush marketers but also directors of official sponsors whose staff or agencies happen to over-step the strict letter of their official sponsorship rights.
(For the reasons set out at (2) below, it could also potentially catch senior individuals at any business advertising on the internet and senior staff at mobile phone networks.) Astonishingly, the government’s Human Rights Assessment blithely dismisses this concern, claiming that the “burden on the accused person would… …not be difficult for a person to discharge if they have no knowledge of the advertising… …or have taken steps to prevent it”. Given the obvious difficulties of proving your own lack of knowledge, directors and other senior staff at advertisers will be well advised, if this position (arising under section 21(2) of the 2006 Act) remains as is, to put in place and enforce written policies within their businesses to prevent unauthorised advertising during London 2012.
2. Mobile devices. The draft legislation does not include any exception for ads displayed on an individual’s mobile phone, iPad or other mobile device. This means that any ad served to the mobile device of a person within an event zone could give rise to an offence on the part of that individual as well as those responsible for booking, serving and publishing the ad. This cannot have been the intention of the legislators, and needs to be addressed.
3. Branding on aircraft. The exceptions at Regulations 9(5) and 9(6) appear to be redundant, as advertisements displayed on or in aircraft are already covered by Regulation 8(1), by virtue of Class C ads under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 falling within the exception under this section.
4. Slogans/logos etc daubed on human bodies. It seems curious that advertising on animals should be called out at Regulation 4(2)(c) without any corresponding reference to advertising on human bodies. (Streakers with daubed-on branding are long-established as an ambush marketing technique.)
5. Charity/not-for-profit bodies. The draft legislation specifically allows certain activities by or on behalf of charities and other not-for-profit bodies. Given that some charities are no strangers to shock tactics and guerilla marketing, this seems at odds with the government’s stated objectives of ensuring a “consistent celebratory look and feel”, preventing ambush marketing within the vicinity of venues and ensuring people can easily access the venues.
6. Goods deliveries. The street trading restrictions prohibit sale of any article or the supply of any service on public highways. On the face of it this seems to prohibit grocery or say pizza delivery services from being provided to residential properties within the exclusion zones. While there is a “milkfloat” exemption, for delivery to the occupier of such premises from a “vehicle which is used only for the regular delivery of milk or other perishable goods”, this exemption would not apply where deliveries are not made on a regular basis. (Note that branding on the delivery vehicles themselves should not give rise to any offence under the “advertising activity” provisions, as Regulation 8 would permit an “advertisement displayed on or in any vehicle normally employed as a moving vehicle”.)
Nick Johnson
Partner
Osborne Clarke
nick.johnson@osborneclarke.com
