Guilty until proven innocent: the 'Olympic' element of the advertising regulations for the London 2012 Olympic Games.

Kala, Kaman

1. Introduction

New regulations governing the use of advertising and trading in the vicinity of the Olympic 'event zones' was introduced in December 2011. The London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011 (the regulations) have been made under the authority of sections 19 and 25 of the London Olympic Games and Paralympic Games Act 2006, as amended by the London Olympic Games and Paralympic Games (Amendment) Act 2011, which received Royal Assent on 14th December 2011 (the Act).

One can assume that the principle objective of the advertising regulations will be to reinforce the protection against the phenomenon of ambush marketing. Ambush marketing involves a business organisation's attempt to capitalise on the goodwill, reputation and popularity of an event, by creating an association with the event, without the authorisation or consent of the organisers (Scaria 2008, 29). (1) The privilege of affiliating the name of a business to a prestigious event is normally done so via sponsorship. The consequences of unauthorised association leads to consumer confusion, where an official sponsor is often deprived of the benefits that sponsorship agreements are designed to generate. Furthermore, the organisers also retain a duty to ensure that they protect the official sponsors, as a lack of protection can potentially lead to business organisations abstaining from providing sponsorship funding in the future. It has also transpired that sui generis legislation must be utilised for ambush marketing purposes, as intellectual property actions in the context of ambush marketing are often rendered futile. This is because successful actions often require factual evidence of infringement, which ambush marketers have become exceptionally astute at circumventing. For example, rarely will one see an ambush marketer utilise the five interlocked rings in any of their marketing campaigns. This paper will briefly outline the key advertising restrictions that have been introduced and will evaluate the legislature's 'gold-plating' element of the regulations - the introduction of a reversed presumption of guilt. (2)

2. Event Zones

The event zones are now clearly identified utilising maps and coloured boundary lines (3). Such zones can be classified as the area within the immediate vicinity of the major Olympic venues. With regards to spectacles such as the marathon route, the regulations will apply to the various parks, roads and other land that the marathon passes. The regulations will prohibit advertisers from advertising on the tube and rail stations that are above ground and within the event zone and will also prevent advertisers from accessing the airspace immediately above an event zone for unauthorised advertising purposes.

2.1 Event Period

It is also clear that the restrictions will only apply during the appropriate event period(s) (4). Such periods will generically revolve around the day prior to an event taking place, until the final day of events taking place in the event zone. Naturally, the event period for the Olympic Park will have the longest protection period, which will be protected for twenty two days, and a further thirteen for the Paralympics.

2.1.1 Advertising Activity

The Regulations will interdict any advertising activity within the event zones, both on public and private land, that has not been prior authorised by the London Organising Committee of the Olympic and Paralympic Games (LOCOG). (5) Advertising activity includes the displaying, projecting, emitting, screening or exhibiting any kind of advertisement whether it is of a commercial or non-commercial nature. It also prevents the carrying or holding of an advertisement or any apparatus, on which the advertisement is displayed. The distribution of documents or articles for the purposes of promotion, advertisement, announcement or direction is also prohibited. Utilising an animal for advertisement purposes is also forbidden. Finally, and explicitly reserved for ambush marketing, one who carries any personal property that that displays an advertisement, or wears a costume that is an advertisement or clothing on which advertisement is displayed, or displaying an advertisement on a person's body will be strictly prohibited. (6)

2.1.2 Contravension

In terms of liability, any contravention of the regulations will be an offence, which could see the perpetrator incur an unlimited fine on indictment or [pounds sterling]20,000 on summary judgment. (7) Extraordinarily, as a defence, the potential transgressor of an ambush activity has to prove, on the balance of probabilities, that such an activity took place without their knowledge or occurred despite them taking all reasonable steps to prevent it. In other words, there is a reversal of the presumption of guilt. (8)

3. Comment

The stringent advertising regulations were expected. The organisers have maintained that such regulations were due in 2011 ever since Royal Assent was given to the original 2006 Act. However, the reversal of the presumption of guilt is the biggest cause for concern. This astonishing derogation from the normal position stipulated under the Article 6(2) of the European Convention on Human Rights (ECHR) is something that could determine liability on not just the senior staff of ambush marketers, but also directors of the official sponsors whose staff surpass the strict letter of their sponsorship rights. Furthermore, what does this mean for small businesses that operate within the vicinity of the event venues on a day-to-day basis?

It is also apparent that the regulations will be utilized in conjunction with Schedule 4 of the London Olympic Association Right (LOAR), which aims to prohibit any association with the Olympics by controlling the use of certain 'listed expressions.' (9) Therefore, if certain words are used in combination with other words, this would give effect to an evidential burden that the LOAR has been infringed. Column A of the expressions include: Games; 2012; Two-Thousand and Twelve and Twenty-Twelve. Column B includes: Gold; Silver; Bronze; London; Medals; Sponsor and Summer. With the presumption of guilt now reversed for advertising, this seems to imply that the use of such expressions would lead to an automatic infringement. Thus, an advertisement such as 'Get your bronze on this Summer' by a local sunbed business (situated in an event zone), would lead to automatic infringement, unless they provide that such an advertisement took place without their knowledge or did everything that they could to prevent it.

A reversal of the presumption of guilt was previously proposed in the initial Bill for the 2006 London Act. It was at the House of Lords where such a notion was rendered disproportionate. Justification of the reversal was done so by the government, claiming that it was of an evidential nature as opposed to an actual presumption of guilt. Lord Clement-Jones struck such a proposition out of the legislation citing '... the reversal of the burden of proof is entirely disproportionate in legislation that is designed essentially to protect the commercial interests of the International Olympic Committee and LOCOG. The burden should be on LOCOG to prove the guilt of an alleged transgressor, not the other way round...' (10)

Despite the initial rejection of such a presumption, why derogate from the previous position now? The right to be presumed innocent has been justified on the grounds that interference with Article 6(2) ECHR is possible "within reasonable limits, which take into account the importance of what is at stake and maintain the rights of the defence." (11) In other words, interference can be justified when it furthers a legitimate aim, and when it is proportionate to that aim. It is quite understandable that stringent protection is required, especially at an event that is regularly ambushed, and where sponsors have paid in excess of [pounds sterling]700 million for exclusive rights. Nevertheless, how can an interference with a fundamental freedom be realistically justified when the legitimate aim is to protect the commercial interests of the organisers? More interestingly, the IOC does not have any requirements that anti-ambush legislation prerequisite a reversal of the presumption of guilt. Furthermore, the purpose of the regulations is to protect against ambush marketing and it seems utterly ludicrous that one, who would have absolutely no intention to breach the law, would probably have to collate evidence in advance with the expectation that they might have to prove their innocence under these regulations at some point in the future. To put such a burden upon an alleged transgressor seems unfair, causes clear legal uncertainty, in addition to being entirely disproportionate and draconian. Needless to say, the regulations are undeniably unprecedented and are contrary to the very basic principles of the English legal system.

4. Conclusion

The advertising regulations are designed to regulate and control as much of the unauthorised marketing as possible and will provide for an interesting Olympics. Such stringent regulations are unique, especially now that the presumption of guilt has been reversed. Furthermore, sui generis legislation in relation to ambush marketing comprises the balancing of interests between the event organisers, the official sponsors and the Article 10 ECHR freedom of expression rights of non-sponsors. Despite the current regulations being against this measure and rather disproportionate, ambush marketing evolves naturally and marketers are increasingly becoming more astute at circumventing the legal provisions designed to protect an event. Thus, despite the severe restrictions in place, history depicts that the impulse to 'gain something from nothing' will be difficult to diminish from the ingenious marketers.

(1.) Arul George Scaria, Ambush Marketing: Game within a Game, (Oxford University Press, New Delhi, 2008) pg 29

(2.) See sections 21(1) and 27(1) of the Act and Regulation (6)

(3.) Schedule 1, Advertising Regulations

(4.) Schedule 2, Advertising Regulations

(5.) Regulation 6(1)

(6.) Ibid

(7.) Section 39, London Olympic Games and Paralympic (Amendment) Act 2011

(8.) See 'The London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011: Guidance on Reverse Burden Defences. http://www.culture.gov.uk/images/publications/Guidance_Reverse_Burden_Defences.pdf accessed 12/02/12

(9.) London Olympic Games and Paralympic Games Act, sch.4 para.2

(10.) Lords Hansard text for 15th February 2006 (60215-31) 2012

(11.) Department for Culture, Media and Sport: Regulations on Advertising Activity and Trading around London 2012, A Consultation, March 2011, accessed at http://www.culture.gov.uk/images/consultations/ConsDoc_Regulations_on_Advertising_and_Trading_London_2012.pdf accessed 01/09/2011

By Kaman Kala *

* Zaman Kala is an Associate Lecturer in law at the University of Central Lancashire and Edge Hill University.