Out-Law News 4 min. read

Government to prohibit human body advertising during events at the Olympics


The Government has changed the drafting of proposed new laws on Olympic advertising to prohibit advertising on the human body at events during the 2012 Games in London.

The Department of Culture, Media and Sport (DCMS) said it had made changes to the draft London Olympic Games and Paralympic Games (Advertising and Trading) Regulations after some respondents to its consultation on the proposed new laws said the wording had failed to account for the possibility that athletes or spectators could display adverts on their body.

Under the London Olympic Games and Paralympic Games Act the Government is legally obliged to create new regulations on advertising and street trading "in the vicinity of London Olympic events". The regulations must specify the period of time the restrictions on those activities apply.

The proposed London Olympic Games and Paralympic Games (Advertising and Trading) Regulations generally prohibit people advertising or engaging in street trade in set "event zones" during the "period" of an event unless "authorised" to do so by the London Organising Committee (LOCOG).

"Responses from the advertising industry ... felt that there should be specific reference within the regulations to prevent the use of the human body for the purposes of ambush advertising," DCMS said in a response (20-page / 233KB PDF) to comments it received during a consultation on its initial drafting of the proposed new regulations.

"For instance, an individual invaded one of the diving events at the Athens 2004 Olympics with the name of a company daubed on his bare chest," the DCMS response document said.

"We will ... make additional changes to prohibit advertising on the human body," DCMS said.

The Government also amended the draft regulations to legalise some advertising sent to mobile phones and other devices during the restricted zones and time periods.

The current drafting now permits "advertising activity that consists of the display of an advertisement on a personal communication device ... unless the advertiser intends the advertisement to be displayed, by means of the device, to the public at large (rather than only to the individual using the device)," the revised draft regulations state.

DCMS said that some respondents had argued that the initial drafting "would incorrectly capture advertisements directed at the users of Smartphones and other portable electronic equipment resulting in individuals unintentionally breaching the regulations" and called for a specific exception to be included to permit it. Other respondents had warned about a blanket exception to portable electronic advertising during restricted periods and in restricted zones claiming that the devices could be used for "ambush marketing purposes if used to display an advertisement to others".

An 'ambush marketing campaign', in which advertising is undertaken without payment to the Olympics, is prohibited under the draft regulations and refers to one or more acts "intended specifically to advertise" goods, services or a person providing goods or services "in an event zone during the relevant event period or periods".

"We accept that there is a risk of individuals unintentionally breaching the regulations by simply going about their normal daily activities; such as viewing the internet on a Smartphone or carrying personal items with visible branding," DCMS said.

"This clearly is not the policy intent of the regulations. It is helpful to have these specific examples raised and we have amended the regulations to ensure these activities are permitted," it said.

DCMS said that provisions within the draft regulations that set out the rights of people to defend accusations of breaking the rules on ambush marketing were "reasonable and proportionate". Under the draft plans those accused can avoid being liable for an offence if "they prove that they had no knowledge of the activity or they took reasonable steps to prevent it happening," DCMS said.

"History tells us that the Olympic and Paralympic Games attracts a high level of ambush marketing and unauthorised commercial exploitation," DCMS said.

"Pursuing those who stand to benefit most from this practice and who are actually culpable, including company directors and land owners, acts as a powerful deterrent. In practice, the prosecutor will be required to prove, beyond reasonable doubt, that an accused committed an offence. The individual has a defence and can avoid liability if they prove that they had no knowledge of the activity or they took reasonable steps to prevent it happening," it said.

"In keeping with existing advertising and trading legislation, the accused must prove the defence on the balance of probabilities. But the matters that a person is required to prove are entirely within their knowledge – that they did not know about the trading or advertising or that they took reasonable steps to prevent the trading or advertising from occurring. This arrangement is consistent with existing law and practice and, in the Government’s view, is reasonable and proportionate," it said.

Iain Connor, intellectual property law expert at Pinsent Masons, the law firm behind Out-Law.com, said that the regulations protect companies located within the restricted zones from going about their daily business, but also protect the rights of the Games' official sponsors.

"The Government in finalising the regulations has listened to a number of concerns raised by interested parties, however the very strict regime to protect against ambush marketing has been maintained," Connor said.

"While a number of exceptions have been allowed to permit businesses within event zones to carry out trading with minimal interruption, a business seeking to gain advantage from the Olympics that is not authorised will likely still find itself in trouble," he said.

"In awarding the Olympics to London, the organisers, LOCOG, accepted its responsibility to protect the commercial interests of the sponsors upon which the success of the Games depends. Accordingly, the thrust of the restrictions imposed by the regulations is to ensure that the value of these rights is not eroded by people or businesses seeking to associate themselves with the Games when they are not authorised. Therefore, while businesses are allowed to maintain existing shop fascia and accept deliveries of goods in their branded lorries, anything that goes beyond their normal activities is likely to be found to infringe the regulations," Connor said.

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